Administration Flip Flops on Rationale for WOTUS Repeal

The Environmental Protection Agency and the U.S. Army Corps of Engineers have taken a new tack to repeal the 2015 Waters of the U.S. Rule or WOTUS Rule.  On July 6, the agencies issued a supplemental notice of proposed rulemaking to amend a July 2017 proposed action that delayed the implementation of the WOTUS Rule with a 30-day comment period.

The agencies are now seeking to repeal the 2015 Rule in its entirety and plan to keep the previous guidance in place that resulted in case by case jurisdictional determinations while it finalizes a new definition of “waters of the United States.” The rationale for this change is premised on the grounds that the 2015 rule was unlawful and inconsistent with Supreme Court precedent. AFS joined with other conservation organizations in support of the WOTUS Rule and requested additional time to comment on this new justification for the repeal.

AFS supports the sound science underpinning the WOTUS Rule and firmly believes that it should be considered by the agencies in any attempt to repeal or replace it. AFS is on record endorsing EPA’s Connectivity Report, which informed the development of the WOTUS Rule, and represents the state of the science on how streams and wetlands contribute to the chemical, physical, and biological integrity of downstream waters.  This refusal to consider the science, including the most current understanding of how streams and wetlands contribute to the chemical, physical, and biological integrity of downstream waters, is detrimental to the integrity and security of our drinking water, public health, fisheries, and wildlife habitat and could significantly increase the risks and costs associated with flood and storm damage.  AFS urges the agencies to take this science into account as they seek to replace the WOTUS rule with one that offers fewer protections for headwater streams and wetlands.

The Trump Administration has indicated that it plans to release a replacement rule this August.

We encourage our members to continue to engage on this issue and promote the science as stated in the Connectivity Report. The public may comment here on the new supplemental grounds for the repeal before August 13, 2018.

Read the letter that AFS and other organizations sent to the EPA and Corp requesting an extension of the comment period.