The U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers on Tuesday proposed rescinding the Clean Water Rule (CWR), which was designed by the Obama administration to clarify what constitutes Waters of the United States (WOTUS).
In the place of the CWR, the agencies proposed re-codifying the identical regulatory text that existed prior to 2015 to define WOTUS. When finalized, the action would provide certainty in the interim, pending a second rulemaking in which the agencies said they will engage in a substantive re-evaluation of the definition of WOTUS.
A preliminary version of the rule was released by the agencies Tuesday ahead of the proposal’s expected publication in the Federal Register.
Because the U.S. Court of Appeals for the Sixth Circuit issued a stay on the CWR in October 2015, the action would not change current practice with respect to how the definition applies, EPA said.
“We are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses,” said EPA Administrator Scott Pruitt. “This is the first step in the two-step process to redefine ‘waters of the U.S.’ and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public.”
In February, President Trump signed an executive order instructing EPA and Army Corps to review the CWR. Although the order did not repeal the CWR outright, it kicked off a review and rulemaking process that was expected to extend into 2018.
In May Pruitt said he expected EPA to have a new rule defining what constitutes WOTUS by either the end of the year or in early 2018.
Controversy has surrounded the CWR since it was unveiled by the Obama administration in May 2015. The rule was opposed from the start by the oil and gas industry, agricultural interests, manufacturers and their Republican allies in Congress. At the time, the EPA and the Army Corps called the rule an “historic step” to protect clean water from pollution and degradation in streams and wetlands throughout the nation that would more “precisely define” the protected waters.
According to the Obama-era EPA, the proposed WOTUS definition would include all territorial seas, interstate waters and wetlands and all waters that are currently being used — or which were used in the past or which may be susceptible for use in interstate or foreign commerce — including all waters subject to the ebb and flow of the tide. It also includes certain impoundments, tributaries and adjacent waters, including wetlands.
Opponents of the rule said it had been interpreted to include ditches and ruts in dirt roads that captured rainwater.
EPA and the Army Corps said Tuesday they have begun deliberations and outreach on the second step rulemaking involving a re-evaluation and revision of the definition of “waters of the United States” in accordance with Trump’s executive order.
Environmental groups and others were quick to condemn the announcement.
“It is appalling, though not surprising, that the Trump administration is rolling back these critical protections in order to help out corporate interests,” said Gene Karpinski, president of the League of Conservation Voters. “This rollback of drinking water safeguards would allow big polluters to dump waste into the drinking water of 117 million people.”
“Every community in America needs clean, safe water every day for every resident and President Trump’s repeal of the Clean Water Rule puts that in serious jeopardy,” said Sen. Ben Cardin (D-MD). “The move is blatantly partisan and can best be described as shortsighted, and dangerous.”
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