Today’s announcement of a supplement to the proposed rule to repeal WOTUS is most welcome. The legal issues are complicated, so it is important for the Environmental Protection Agency to get it right in order to avoid extended litigation. Administrator Pruitt in his announcement said that after completing repeal, the EPA will “work on a new, improved definition” of federal jurisdictional wetlands. This is critical because pre-Obama wetlands regulation made jurisdictional claims over puddles and damp spots that went far beyond Congress’s intent and the Constitution’s limit of federal authority to navigable waters.
Repealing the WOTUS rule and replacing it with a much narrower definition of federal wetlands is critical because delays in wetlands permitting are a major obstacle to economic growth, particularly for resource industries such as mining in rural areas. But permitting delays also hamper development in urban areas. Obtaining a permit can take five or more years for even a small project. Large projects are now regularly delayed to death by permitting processes that take ten to twenty years.
The EPA’s new definition of wetlands should confine federal jurisdiction to navigable waters and wetlands directly adjacent to navigable waters. Whether and how to regulate intermittent flows and small creeks that are many miles upstream from navigable rivers should be left to the states.
Read more about CEI’s views on WOTUS here.