A lot has happened since the summer of 2015 when the Obama Administration finalized its “Waters of the United States (WOTUS) rule.” The WOTUS rule is highly controversial because it radically expands federal authority over private property across the country.
In response to a February 28, 2017 executive order issued by President Trump, in December 2018 the Environmental Protection Agency and the U.S. Army Corps of Engineers issued a new proposed rule. The proposal would repeal the Obama-era rule and make clear that Clean Water Act jurisdiction is limited and does not cover dry lands, or lands that are only occasionally wet. It would also take a much more reasonable approach to Clean Water Act regulation.
Importantly, this proposal offers much-needed practical guidance to small businesses and other landowners who have long struggled in trying to figure out whether they may safely use their lands. If finalized, the new rule would provide easily understood bright-line standards. This would enable ordinary landowners to figure what is and is not covered without having to pay for lawyers and consultants.
NFIB’s Comment on the Proposed Rule
While NFIB is encouraged by these developments, it is important that we continue pressing these issues until the Obama-era rule is officially withdrawn. NFIB filed its comments on the proposed rule.
While the Trump Administration Considers a New Proposed Rule, Obama WOTUS Rule Remains the Law in 22 States
It is important to note that while the EPA and the U.S. Army Corps of Engineers complete the rulemaking process for the new Trump-era WOTUS proposal, thanks to a federal judge in South Carolina, the Obama rule continues in effect in 22 states. The good news is that half the country can breathe easy, as three separate federal courts have issued orders prohibiting the EPA and U.S. Army Corps of Engineers from enforcing the WOTUS rule. First, a federal district court in North Dakota blocked the rule in a handful of states in 2015. Later a federal court in Georgia blocked the rule in several other states. And, finally, a federal district court in Texas issued an additional injunction. Here is a breakdown:
- States where the Obama WOTUS rule has been blocked and is NOT in effect: Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, Nebraska, New Mexico, Nevada, North Carolina, North Dakota, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, and Wyoming.
- States where the Obama WOTUS rule is in effect: California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Hampshire, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Oregon, Vermont, Virginia, Washington.
NFIB will continue to help small business owners across the country to ensure that the Obama WOTUS rule is repealed and a new, clearer rule is put in its place that truly protects your property rights.