January 24, 2020
A Clearer WOTUS Definition?
The Trump Administration issued a rule that clarifies the definition of the Waters of the United States (WOTUS) — determining what natural features are considered federal waters. The new definition reduces federal authority while leaving room for state and local governments to protect smaller waters, writes AAF’s Director of Regulatory Policy Dan Bosch. While the new rule provides some clarity, a comprehensive definition of WOTUS is impossible, and the rule will be subject to litigation, he contends.
The most common criticism of the rule is that it substantially scales back federal “protection of” waters. When the changes are described this way, the term “protection of” implicitly means “authority over.” While the rule intentionally scales back federal authority, the waters that are no longer covered by the rule are still subject to state and local government regulation. State and local governments have no incentive to allow the degradation of their waters. Instead, they are better placed than the federal government to determine the relevant threats and, when necessary, the protective regulations needed.