September 12, 2019
Agencies Repeal the Obama Waters of the United States Rule
The Trump Administration finalized a rule to repeal the Obama Administration’s 2015 Waters of the United States (WOTUS) rule, which defined what natural features are considered federal waters. The new rule will deliver over $1 billion in regulatory savings, but it will not ultimately clarify the definition of federal waters, writes AAF’s Director of Regulatory Policy Dan Bosch. This rule is expected to be replaced by a new definition later this year, and will likely be subject to litigation in the meantime.
Unfortunately, the new rule will not provide much clarity. For starters, it restores 1980s regulations that were the subject of litigation that ultimately led to the Obama rule. Second, this new rule will almost certainly be subject to a legal challenge. As a result, resetting the rule to the 1980s’ version continues the uncertainty that has existed since the 2006 Supreme Court decision…In addition, it is possible that the rule never takes effect. Should a legal challenge to the Trump rule succeed, it is possible a court will place a nationwide stay on its effectiveness, as occurred with the Obama-era rule. Third, this rule is designed to be replaced by the forthcoming revised definition, so even if it takes effect, it will likely be short lived and could lead to confusion about what definition of WOTUS is technically in effect if violations occur in the interim.