Trump Administration to Rewrite “Waters of the U.S.” Rule

The Trump administration will rewrite a controversial rule issued in 2016 by the Environmental Protection Agency (EPA) and the U.S. Army Corp of Engineers (Corp). The rule would have expanded the federal government’s jurisdiction over certain types of waters, including rivers, ephemeral and intermittent streams, and wetlands.

Called the “Waters of the U.S.” rule, or “WOTUS” rule, it was issued in response to Supreme Court cases mandating that federal government agencies responsible for implementing the Clean Water Act clarify the meaning of that term for purposes of jurisdiction of the law. Critics of the rule charged that the rule would have expanded EPA and Army Corps jurisdiction and control, rather than providing clarification as court rulings had intended. The WOTUS rule was opposed by farmers and land owners, among others, who oppose expanded federal control over their properties. The rule had been in limbo since the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the rule in 2016, temporarily nullifying the new regulation until the court considered whether the agencies had exceeded their authority granted under the Clean Water Act.

As a matter of policy, NAIOP opposes attempts to increase the authority of the federal government to regulate wetlands and believes that states have an inherit right to protect and regulate state waters without the federal government imposing additional regulations that often do little to protect waterways. NAIOP staff negotiated with EPA staff soon after issuance of the draft WOTUS rule to remove the more onerous aspects of the rule that were included when it was first proposed. As a consequence, several changes were made to ensure that the rule did not unnecessarily or unintentionally harm commercial real estate development, including the addition of a number of specific exemptions to the rule addressing our concerns.

The White House is expected to issue executive orders this week directing EPA and the Corp to rewrite the WOTUS rule. Last week the Senate confirmed Scott Pruitt, President Trump’s nominee to head the EPA. As attorney general in Oklahoma, Pruitt had joined several other state attorney generals in challenging EPA’s WOTUS rule in court.

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