The Environmental Protection Agency, along with the Department of the Army and the U.S. Army Corps of Engineers, are proposing a rule that would overturn the Obama administration’s Waters of the United States (WOTUS) rule and reinstate the previous regulation, according to The Wall Street Journal.
The move aims to “provide certainty” while the agencies develop new rules to cover the regulation of the smaller waterways and wetlands that WOTUS currently covers.
- WOTUS has faced pushback since its inception, particularly from industries like agriculture and land development, including legal challenges that delayed enactment.
President Donald Trump campaigned on a host of deregulation pledges — including this one. But what many thought would be among his first actions in office happened more than a month into his presidency (which he kicked off with a host of executive actions that concerned cutting regulations). In February, Trump signed an executive order calling on the EPA and the Army Corps of Engineers to repeal or revise WOTUS.
Construction industry groups are longtime critics of the 2015 rule, saying the EPA had overreached and that the rule lacked clear definitions as to what waterways it included. Multiple states filed legal challenges against the rule by summer of that year, the Sixth U.S. Court of Appeals issued a temporary stay against it in October and the House and Senate passed a resolution attempting to overturn it in full. Then-President Barack Obama vetoed the resolution in January 2016.
In May 2016, the Supreme Court ruled that builders and developers could challenge whether the land they are building on is covered by WOTUS, removing the mandatory and lengthy permitting process.
That ruling was received positively by builders, in part because it let them begin litigation before finishing the permitting process. In addition to claims of overreach, builders have also claimed WOTUS adds cost and time to projects via the regulatory approvals process.
In its response to the potential repeal of WOTUS, the National Association of Home Builders called the move “an important first step toward” to address a regulation that it says “blatantly usurped state and local authority.”
The building industry and other challengers want to see a more scaled back version of the legislation. The WSJ notes that the move to repeal and revise WOTUS stands to do just that for smaller waterway and wetland regulations, though environmentalists have long been concerned that being too lax with such water sources can have negative reciprocal effects for the larger bodies of water they feed and the local ecosystems they serve.
Rule-revision is expected to be a multi-year process.