EPA’s Backwards Two-Step to Eviscerate Clean Water Protections is the Wrong Dance Move
Today’s announcement reinstates 1980s era definition of “Waters of the United States,” sets stage for next rollback expected later this year.
September 12, 2019
Washington, D.C. — The Environmental Protection Agency announced a final rule today repealing the 2015 “Waters of the United States” (WOTUS) rule and replacing it with a rule first adopted by the Reagan administration in 1986. Today’s announcement is the first step in a two-step process that will ultimately leave 18 percent of the nation’s streams and half of its wetlands unprotected by federal law. David J. Hayes, Executive Director of the State Energy & Environmental Impact Center at NYU School of Law and former Interior Deputy Secretary in the Obama and Clinton administrations, released the following statement in response to today’s announcement:
“The three-decade-old view of Clean Water Act jurisdiction that the administration formally adopted today should be left in the 1980s, along with bad haircuts and too much neon. That cramped definition of which waters deserve protection is simply insufficient in the face of today’s challenges. To make matters worse, EPA has announced its intention to issue an even more radical final rule later this year that will remove federal protection from millions of acres of wetlands and thousands of miles of rivers and streams, including sacrificing around half of all our nation’s currently protected wetlands. This ‘backwards two step’ has to rank as one of the worst Trump rollbacks yet — and that’s saying something.”
Background
The rule finalized today was proposed by the EPA and the U.S. Army Corps of Engineers in July 2017, in response to an executive order issued by President Donald Trump in February 2017. New York led coalitions of state attorneys general in opposing the proposed rule in comments submitted in September 2017 and August 2018. Today’s action is the first step of a two-step “repeal and replace” process outlined by the administration.
In December 2018, the EPA and the U.S. Army Corps of Engineers proposed the second step — a replacement rule (published in the Federal Register in February 2019) that would require wetlands to have a direct surface hydrological connection to a navigable waterway in order to receive federal Clean Water Act protections. The agencies’ new WOTUS definition may also eliminate federal protections for streams with perennial or intermittent flow into jurisdictional waters. The agencies are expected to finalize the replacement rule later this year, which will complete the two-step process.
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About the State Energy & Environmental Impact Center:
The State Energy & Environmental Impact Center at NYU School of Law is a nonpartisan academic center at NYU School of Law. The Center is dedicated to working towards a healthy and safe environment, guided by inclusive and equitable principles. The Center studies and supports the work of state attorneys general (AGs) in defending, enforcing, and promoting strong laws and policies in the areas of climate, environmental justice, environmental protection, and clean energy.