On September 12, 2019, the Trump administration issued a final rule repealing the Obama 2015 “Waters of the US” (WOTUS) rule, which defined the scope of “waters” protected under the federal Clean Water Act (CWA). This is the Trump administration’s Step One in revising the WOTUS rule. The repeal is effective 60 days from its publication in the Federal Register.

The administration’s rationale for the repeal is that the 2015 rule overly expanded federal regulatory power under the Clean Water Act and the Commerce Clause, failed to adequately consider states’ rights, and suffered from procedural errors and lack of record support. The administration has specifically pointed to what it considers to be misinterpretations of the “significant nexus” concept derived from case law and the broadening of the “tributary” and “adjacency” concepts to include isolated waters and specific linear distances as issues to address with a new WOTUS rule. Although wetland jurisdiction is a hot issue that has grabbed public attention for years, the WOTUS rule affects more than wetland regulation under the CWA; it affects other CWA programs such as spill reporting and water pollution control as well. Continue reading >