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EPA reveals plans to repeal US waterway protections under Clean Water Act

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The US Environmental Protection Agency (EPA) has announced plans to redefine ‘waters of the United States’ (WOTUS) that are protected under the Clean Water Act.

Announced at an event in Dallas, the EPA and US Army’s plans aim to repeal a 2015 rule that impermissibly expanded the definition of WOTUS. This will effectively shrink the waterways that must be protected under law.

According to The Hill, the plans to repeal the WOTUS rule would ‘stymie the federal government’s capacity to regulate pollutants in wetlands and tributaries that feed into large rivers’. The move is likely to be met with anger from environmentalists.

“Today, EPA and the Department of the Army finalised a rule to repeal the previous administration’s overreach in the federal regulation of US waters and recodify the longstanding and familiar regulatory text that previously existed,” said EPA administrator Andrew Wheeler. “Today’s Step 1 action fulfils a key promise of President Trump and sets the stage for Step 2 – a new WOTUS definition that will provide greater regulatory certainty for farmers, landowners, home builders, and developers nationwide.”

The ruling is the first step in a two-step rulemaking process to redefine the scope of WOTUS that are regulated under the Clean Water Act. In reviewing the merits of the 2015 rule, two federal district courts found that it suffered from certain errors, and issues orders remanding the rule back to the EPA and US Army.

“Today, administrator Wheeler and I signed a final rule that repeals the 2015 Rule and restores the previous regulatory regime exactly how it existed prior to finalization of the 2015 Rule,” added R.D. James, assistant secretary of the Army for Civil Works. “Before this final rule, a patchwork of regulations existed across the country as a result of various judicial decisions enjoining the 2015 rule.

“This final rule re-establishes national consistency across the country by returning all jurisdictions to the longstanding regulatory framework that existed prior to the 2015 rule, which is more familiar to the agencies, states, tribes, local governments, regulated entities, and the public while the agencies engage in a second rulemaking to revise the definition of ‘waters of the United States.’”

Among other issues, the courts found that the rule failed to adequately recognised, preserve and protect the primary responsibilities and rights of states to manage their own land and water resources.

The second step, which was the proposal of a new definition by the EPA and US Army in December last year, will clearly define where federal jurisdiction begins and ends in accordance with the Clean Water Act. In the proposal, the agencies provide a clear definition of the difference between federally regulated waterways and those waters that rightfully remain solely under state authority.