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Providing coverage of Alaska and northern Canada's oil and gas industry
September 2019

Vol. 24, No.37 Week of September 22, 2019

EPA repeals Obama era WOTUS definition

New rule would revert specification of waters of the United States to pre-2015 wording; agency plans to implement new definition

Alan Bailey

Petroleum News

On Sept. 12 the Environmental Protection Agency and the U.S. Army announced a proposed new rule, repealing a definition of the waters of the United States introduced by the Obama administration in 2015. The new rule, which is subject to a 60-day public comment period following publication in the Federal Register, would revert the definition of what is commonly referred to as WOTUS to the pre-2015 language. The move by the federal agencies follows a strategy of clarifying the scope of waterbodies subject to federal regulation under the terms of the Clean Water Act.

In late 2018 the agencies proposed a new WOTUS specification, but that specification has yet to go into effect. The agencies say that “step two” of their rework of the WOTUS regulations will involve the implementation of this revised WOTUS definition.

“Today, EPA and the Department of the Army finalized a rule to repeal the previous administration’s overreach in the federal regulation of U.S. waters and recodify the longstanding and familiar regulatory text that previously existed,” said EPA Administrator Andrew Wheeler when announcing the new rule. “Today’s step one action fulfills a key promise of President Trump and sets the stage for step two - a new WOTUS definition that will provide greater regulatory certainty for farmers, landowners, home builders, and developers nationwide.”

“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,” said 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.”

Critical to Alaska

The WOTUS definition is particularly important in Alaska because of the huge number of wetlands, waterways and waterbodies in the state - any project that may impact water that falls within the definition requires federal permitting. Controversy surrounds that definition, in particular because it raises issues regarding the extent of federal jurisdiction within states, and because it impacts the relative rights of federal, state and tribal authorities to manage land.

Simple in principle but complex in practice, the WOTUS definition clearly encapsulates navigable waterways that can support interstate commerce. But waters flowing into these waterways can carry contaminants. These secondary waters can, in turn, be polluted by contaminants from other waterways and from wetlands. So, where exactly do the waters of the U.S. end and state waters begin?

Even the U.S. Supreme Court has struggled with WOTUS - in a case in 2006 the court failed to issue a clear opinion on the scope of a WOTUS definition.

The 2015 rule

The Obama administration’s 2015 rule placed under federal jurisdiction tributaries to the more obvious U.S. waterbodies, wetlands adjacent to these tributaries and waters impounded behind dams. The result, a significant expansion of the WOTUS scope, was strongly criticized by Alaska lawmakers, who regarded the rule as an example of federal overreach.

The proposed definition introduced by the Trump administration in 2018 included traditional navigable waters, including large rivers, large lakes, tidal waters and territorial seas. The definition also included tributaries flowing into these waters, directly or via some other tributary. And a tributary was defined as a naturally flowing waterway that flows more than just when rain is falling.

Certain other specific types waterbodies and wetlands were also included in the definition.

Lawmakers respond

The Alaska congressional delegation has praised the Trump administration’s actions.

“While the Clean Water Act is important piece of environmental protection legislation, President Obama’s WOTUS rule was just one more example of the egregious federal overreach that defined his heavy-handed administration,” said Congressman Don Young. “Expanding the definition of ‘navigable waterway’ to include tiny streams and ponds only served to ensure that every day Americans - Alaskans among them - would run afoul of the rule. President Trump has been a great partner in the fight to reign in the previous administration’s outrageous expansion of federal power, and I would like to thank him and EPA Administrator Andrew Wheeler for their continued commitment to cutting red tape and reducing government bureaucracy.”

“This is a big deal for Alaska that should help end years of concern, frustration, and uncertainty over a costly regulation that would have halted construction projects and other economic opportunities,” said U.S. Sen. Lisa Murkowski. “This new proposal will protect water quality while providing clarity on the scope of regulation and restoring balance to the state and federal relationship. I look forward to working with EPA and the Army Corps to make sure it is effective and workable for Alaskans.”

“I welcome the EPA’s long awaited proposal to restore power to states and protect land owners - and hardworking Alaskans - from the confusing and burdensome federal overreach of the last administration’s WOTUS rule,” said U.S. Sen. Dan Sullivan. “If a landowner or a farmer has to hire a lawyer for months of work against an impenetrable and glacial bureaucracy - at the cost of thousands of dollars - just to understand whether they can fill in a ditch or build a structure, it doesn’t take a genius to figure out that doesn’t work, especially in Alaska.”

Environmental organizations have a different perspective.

“The EPA’s callous decision endangers communities and threatens our environment,” said Marcie Keever, oceans and vessels program director for Friends of the Earth. “Corporations will now be given free rein to pollute our waterways and put millions of American lives at risk. Clean water is essential to all life, but instead of protecting it, the Trump administration is giving big polluters another handout. Vulnerable communities who already suffer from a lack of access to clean water will be put at even greater risk by this immoral decision.”





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