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Trump administration formally withdraws the 2015 Water of the United States rule

By James D. Bradbury,  PLLC
and Alexis S. Long

The Waters of the United States (WOTUS) rule has been the subject of a long-standing debate.

Since its implementation in 2015, U.S. agriculture interests and the dairy industry have greatly opposed its enactment as being harmful to their industries. On Sept. 12, through a combined effort of the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers, the 2015 rule that expanded the meaning of WOTUS under the Clean Water Act (CWA) was repealed.

Reverting back to the pre-2015 rule is the first step in creating a new WOTUS definition. The second step is to create a new WOTUS definition to “provide greater regulatory certainty for farmers, landowners, home builders, and developers nationwide.” The new definition would draw a clear line between federally regulated water­­ways and those regulated by states. It would allow farmers, landowners and businesses to spend more time on infrastructure and growing crops as opposed to applying for permits. The new definition is expected to become final later this year.

The repeal of the 2015 rule comes as a campaign promise by President Trump to farmers who contended the rule was too expansive. The WOTUS rule was expanded to encompass additional types of waterways that received federal protections under the CWA. However, the rule received a lot of criticism for overreaching. U.S. Secretary of Agriculture Sonny Perdue made this statement:

“Repealing the WOTUS rule is a major win for American agriculture. The extreme overreach from the past Administration had government taking the productivity of the land people had worked for years. Farmers and ranchers are exceptional stewards of the land, taking great care to preserve it for generations to come. President Trump is making good on his promise to reduce burdensome regulations to free our producers to do what they do best – feed, fuel, and clothe this nation and the world.”

The pre-2015 regulation currently in place is informed by agency guidance documents and previous Supreme Court decisions. Once the new rule is written by the agency, it will go into effect 60 days after it is published in the Federal Register.

By repealing the 2015 rule, the agencies aim to remedy legal and procedural deficiencies of the rule, eliminate extensive litigation, and restore the previous regulator process. However, by repealing the rule without a replacement, there is continuing legal uncertainty for U.S. producers regarding the scope of the CWA. Until a new rule is promulgated by the agency, there will still be debate over which waters are federally protected and those that are not.

But hopefully, once the new rule is enacted, there will be certainty in its implementation and the opportunity for the agriculture and dairy industry to continue to grow and thrive.

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