Without great fanfare, the
Trump Administration recently took the first step toward repealing and
replacing the Obama-era Waters of the United States (WOTUS) rule
that defines what natural features are considered federal waters under the
Clean Water Act. As explained by
AAF’s Dan Bosch, putting a revised rule in place is intended to be a two-step
process. First, the Environmental Protection Agency and the U.S. Army Corps of
Engineers (the two agencies) have finalized a rule that
repeals the Obama-era rule and restores regulations from the 1980s.
This is a mixed blessing. The 2015 Obama rule was necessitated by a series
of Supreme Court decisions that ruled the Environmental Protection Agency and
the U.S. Army Corps of Engineers had overstepped their authority. So, something
had to be done. Unfortunately, the first cut imposed
$166 million in annual costs, took 370 pages, and replaced standard definitions
of bodies of water (e.g. “intrastate lakes, rivers, streams”) with a
case-by-case judgment framework. An uproar ensued and
the administration adopted a final rule that
was shorter (297 pages) but much more costly ($462.9 million). This rule
contained a set of “automatic jurisdictions” that produced a rise in the number
of regulated bodies of water to correspond with the price tag.
The Trump Administration has now undone the automated jurisdictions and
associated regulatory costs. But it finds itself in the same unenviable
position as the preceding administration: how to produce an effective
implementation of the Clean Water Act, devoid of excessive regulatory costs
that can survive the inevitable litigation.
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