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EPA's WOTUS Replacement Rule Another Step in the Right Direction

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The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers today released their Navigable Waters Protection rule, which replaces the 1986 wetlands rule. The agencies repealed the Obama-era Waters of the U.S. (WOTUS) rule in 2019.

Director of CEI’s Center for Energy and Environment Myron Ebell said:

“The Trump administration’s repeal of the Waters of the U. S. Rule (WOTUS) last fall was great news for America’s landowners and for the rule of law. The final rule announced today that replaces the 1986 wetlands rule is another step in the right direction. 

“The rule appears to make several significant improvements to the 2018 proposed rule. In particular, the rule defines the limits of federal jurisdiction over waters and wetlands more carefully and lists more clearly the types of areas that are excluded from federal regulation. The bad old days when the Corps of Engineers used the overly broad and vague 1987 delineation manual creatively to expand federal regulation to lands that might occasionally be moist should be gone for good. 

“However, rather than simply adopting Justice Scalia’s clear language in the 2006 Rapanos decision, the final rule still tries to include parts of Justice Kennedy’s ill-considered ‘significant nexus’ test, which he invented in his concurring opinion. This means that it is unlikely to meet EPA Administrator Andrew Wheeler’s admirable goal of having a definition of wetlands that is clear and simple enough that landowners can understand ‘whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.’”

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