Trump Administration Rolls Back Clean Water Rule

Repealing the Obama-era WOTUS regulation aims to correct the patchwork of rules across the country.

September 16, 2019

BOSTON—Last week, the Trump Administration rolled back an Obama-era regulation on clean water that clarifies federal jurisdiction under the Clean Water Act, which expanded the types of waterways that receive federal protections from pollution.

Criticism of the Clean Water Act came after the loose definition caused lawmakers to have a more difficult time determining whether bodies of water fell under the definition or not. Republicans contended that the rule was an overreach of federal powers. 

Law360 reports that the Waters of the United States (WOTUS) definition has been through a multitude of federal court challenges, which caused states to either follow the 2015 ruling or a ruling from the Reagan Administration, creating a “patchwork” of regulations throughout the country.

The previous rulings indicated that the Obama-era WOTUS definition, better known as the Clean Water Rule, exceeded the EPA’s and Army Corps of Engineers’ authority under the Clean Air Act.

Law360 says that in December, the EPA and Corps proposed the replacement rule, which would reduce the number of waterways covered by the act. The Obama-era rule was slammed by agricultural and real estate interests as a federal power grab.

The new rule would create six categories of water to be covered by WOTUS:

  • Traditional navigable waters
  • Tributaries to those navigable waters, meaning perennial or intermittent rivers and streams that contribute flow to a traditional navigable water in a typical year
  • Certain ditches, such as those used for navigation or those affected by the tide
  • Certain lakes and ponds that are similar to traditional navigable waters or that provide perennial or intermittent flow in a typical year to a traditional navigable water
  • Impoundments such as check dams and perennial rivers that form lakes or ponds behind them
  • Wetlands that abut or have a direct hydrologic surface connection to another water in the U.S.