WOTUS redefinition outProposal follows Trump’s order to review Obama admin regulations for US waters Alan Bailey Petroleum News
On July 27 the Environmental Protection Agency filed a notice in the Federal Register stating the agency’s intent to roll back the definition of the waters of the United States, or WOTUS, to the definition that predated a version introduced by the Obama administration in 2015. The notice, which triggers a public comment period for the change, comes as a first step in meeting the requirements of an order issued by President Trump in February of this year, the agency says.
The presidential order required a review of the regulations introduced in 2015, “showing due regard for the roles of Congress and the states under the constitution,” and particularly considering the opinion of Supreme Court Justice Scalia in a 2006 court case involving the interpretation of WOTUS rules.
Critically important The WOTUS definition is of critical importance in the permitting of projects that impact wetlands and waterways, because the definition determines which projects become subject to federal jurisdiction and federal permitting. The definition tends to be controversial because it raises issues regarding the extent of federal jurisdiction within states and the relative rights of federal and state authorities to manage lands within the borders of the United States. The situation is particularly touchy in Alaska because of the state’s myriad rivers, streams, lakes and wetlands.
Federal jurisdiction over waterways is simple in principle in that most people agree that the federal government can regulate navigable waters that are capable of supporting interstate commerce. But where do the waters of the U.S. end and local or state waters begin? Water flowing into those more obvious U.S. waters can carry contaminants from other water bodies that are less clearly federal. Under the 2015 EPA rule, tributaries to the more obvious U.S. water bodies, as well as wetlands adjacent to these tributaries and navigable waters impounded behind dams are all subject to federal jurisdiction.
Regulatory confusion Confusion over exactly where waters of the U.S. end and state waters begin has inevitably led to litigation, with individual federal decisions over the scope of water permitting being challenged through the courts. In fact, the 2015 rule is currently subject to a stay invoked by the U.S. Court of Appeals for the 6th Circuit as a consequence of an appeal against that rule. EPA says that it wants to revoke the stayed rule.
When an earlier dispute over federal water jurisdiction reached the U.S. Supreme Court in 2006, the justices did little to settle the water-borne confusion when they failed to reach a majority decision, instead publishing two distinct opinions on the subject. Trump’s February order referred to one of these opinions, the opinion expressed by Justice Scalia. Scalia argued for a relatively narrow definition of WOTUS, restricting the federal waters to streams, oceans, rivers and lakes, and excluding temporary water bodies and wetlands. An alternative opinion expressed by Justice Stevens took a broader view, arguing that pollution in wetlands adjacent to tributaries of navigable waters could impact the navigable waters.
Attempted clarification Following the 2006 court case, federal agencies took to issuing guidance on how they would interpret the meaning of WOTUS, while still relying on WOTUS regulations that mostly dated back to 1977. The 2015 WOTUS rule was an attempt to achieve regulatory clarity, albeit with a very broad view of the WOTUS definition. The Trump administration clearly now wants to establish a much narrower definition. The proposed rule rolling back the 2015 definition is the first step of a two-step process. The second step will involve rolling out a new WOTUS definition.
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