Special Topics in Environmental Management

WOTUS Delay: Stakeholders’ Reactions

In its final rule adding an applicability date for the Obama administration’s 2015 Clean Water Rule (more commonly called the waters of the United States (WOTUS) rule), the EPA and Army Corps of Engineers (Corps) state that action simply maintains the status quo (i.e., the definition of waters of the United States that prevailed before the 2015 rule was issued) and “does not repeal or replace the 2015 Rule.”

This statement cannot disguise the fact that the agencies are also working on a two-part action that will first rescind the WOTUS rule and then embark on a second regulatory action to reevaluate the WOTUS definition that comprises the 2015 rule. However the EPA/Corps describe the second action, called Step Two, the intent is to write a definition of WOTUS to replace the 2015 definition.

There is little reason to doubt that each of these actions will occur before the new applicability date, which is 2 years after publication of the applicability rule in the FR. Therefore, while the applicability rule does not technically terminate the 2015 rule, it is viewed by all stakeholders as the beginning of the end for that action.

Following are comments by those favoring and opposing the applicability rule.

In Favor

“The American Farm Bureau Federation applauds today’s action by the U.S. EPA and Army Corps of Engineers to delay implementation of the hopelessly vague 2015 rule that expansively defined waters of the United States. That rule would have put a stranglehold on ordinary farming and ranching by treating dry ditches, swales, and low spots on farm fields just like flowing waters. Without today’s action, countless farmers and ranchers, as well as other landowners and businesses, would risk lawsuits and huge penalties for activities as common and harmless as plowing a field.” – Zippy Duvall, president, American Farm Bureau Federation

“This is a decision we have been waiting a long time for. In addition to sending comments and providing testimony, NAHB has met repeatedly with EPA leaders to explain the effects of these new definitions and how the overreach and resulting confusion affects not only property owners but the regulators themselves.” – Randy Noel, chairman, National Association of Home Builders

“Today’s action from EPA and the Army Corps ensures the 2015 WOTUS Rule never comes back. We thank Administrator Pruitt and his team for this prompt action which protects agricultural producers across the country and we look forward to the next steps—repeal and replace.” – Scott Yager, chief environmental counsel, National Cattlemen’s Beef Association

“The Obama Administration’s infamous WOTUS rule, which burdened rural America with regulatory red tape, is now pushed back two years. This will provide certainty to the regulated community and give EPA time to rewrite the rule while listening to farmers, ranchers, and landowners’ concerns—the very folks who were ignored by the previous Administration. I’m pleased we now have an Administration that is willing to do that.” – U.S. Senator Pat Roberts (R-KS), chairman of the Senate Committee on Agriculture, Nutrition, and Forestry

Opposed

“The Trump administration is playing politics with our drinking water. By attempting to delay the Clean Water Rule, the agency is one step closer to repealing the rule altogether. The rule was built on years of public engagement and scientific research. We need to protect the streams and wetlands that provide the drinking water of one in three Americans. This delay is an obvious attempt to make it easier for corporate interests to pollute our waterways.” – Janette Brimmer, attorney, Earthjustice

“This reckless decision by the Trump Administration to suspend the implementation of the Clean Water Rule will put the drinking water for one in three Americans in danger, all so Trump and Scott Pruitt continue to pander to polluters intent on spewing their noxious waste into America’s waterways without accountability. Communities across our country can’t just ‘suspend’ their need for clean water anymore [sic] than they can suspend their need for the sun to come up, which makes this ridiculous giveaway to polluters all the more galling.” – Dalal Aboulhosn, deputy legislative director for Land and Water, Sierra Club

“The Trump administration’s two-year delay of the Clean Water Rule will benefit owners of golf course around the country, an industry that includes President Donald Trump himself. This move is a triple bogey that leaves the public in the rough. It likely would benefit Trump, who owns or has Trump-branded golf courses in Florida (two), New York (three), New Jersey (two), Virginia (outside Washington, DC), California, North Carolina, and Pennsylvania. As the nation’s golfer-in-chief, Trump is aiding his industry and potentially himself by undercutting vital protections for Americans’ drinking water.” – Robert Weissman, president, Public Citizen

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