|
Administration issues new WOTUS definition
Kristen Nelson Petroleum News
WOTUS, waters of the United States, has a new definition, replacing one from the Obama administration with one from the Trump administration.
The definition issue dates from enactment of the Clean Water Act in the 1970s, with contention over the scope of federal authority under the act and tension between expanding the definition to provide more protection and landowner and developer rights.
The WOTUS definition was expanded under the Obama administration in 2015, drawing objections from, among others, Alaska’s congressional delegation.
The Trump administration sees its definition as providing certainty.
In a Jan. 23 announcement, EPA Administrator Andrew Wheeler said: “EPA and the Army are providing much needed regulatory certainty and predictability for American farmers, landowners and business to support the economy and accelerate critical infrastructure projects.”
“Having farmed American land myself for decades, I have personally experienced the confusion regarding implementation of the scope of the Clean Water Act,” said R.D. James, assistant secretary of the Army for Civil Works. “Our rule takes a common-sense approach to implementation to eliminate that confusion. The rule also eliminates federal overreach and strikes the proper balance between federal protection of our Nation’s waters and state autonomy over their aquatic resources.”
The court was divided In a Dec. 8 story Petroleum News reported on an overview of the WOTUS situation provided by Duncan Greene, a partner in Van Ness Feldman LLP, to the Resource Development Council’s annual conference Nov. 20.
In 2006 the Supreme Court issued a split decision on WOTUS, Greene said, with one test for defining WOTUS relatively narrow and the other more expansive, including water with a significant nexus to clearly jurisdictional waters.
The 2015 rule promulgated under the Obama administration was more expansive; the 2018 rule proposed by the Trump administration was more restrictive.
Alaska’s senators have fought for a more restrictive rule and both responded Jan. 23 to the new definition.
“I have worked for years to try to prevent federal agencies from massively expanding the definition of the ‘Waters of the United States,’ and I appreciate this administration’s efforts to return to a more reasonable regulation that does not block private construction or harm economic growth,” U.S. Sen. Lisa Murkowski, R-Alaska, said in a Jan. 23 statement. “Many states, including my home state of Alaska, already have robust standards that work in tandem with federal requirements to protect water quality,” she said.
“I join hard-working Alaskans and land owners across the country in welcoming the Trump administration’s final, clear WOTUS Rule, which stands in stark contrast to the burdensome and overreaching definition offered by the previous administration,” said U.S. Sen. Dan Sullivan, R-Alaska.
“Under the previous rule, land owners faced the potential for thousands of dollars in litigation and months of bureaucratic back-and-forth just to fill a ditch on their own property, or build a structure.”
Greene told the RDC conference that Alaska is particularly impacted by the 2015 definition because of all of the waterbodies in the state.
Because of pending litigation on the rules, Greene said it’s his guess “we probably won’t really know where all of this is going to end up until the Supreme Court gets another crack at defining WOTUS.”
-KRISTEN NELSON
| 