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Continuing Twists and Turns of WOTUS

Waters of the United States

The winding course that the Waters of the United States rule, designed to provide tighter protections of the nation's waterways, has been on since being passed in 2015 by the Obama Administration might have hit a dam.

To recap some of the latest bends, President Trump issued an Executive Order on February 28, 2017 directing the EPA and the Department of the Army to review and rescind or revise WOTUS, so the agencies signed a final rule to repeal it and "re-codify the regulatory text that existed prior to 2015 Rule." However, WOTUS still applied in 22 states, the District of Columbia and the U.S. Territories.

A lawsuit was brought against the federal government by 10 states opposing WOTUS, believing that it gave the federal government too much control over waterways. Recently, U.S. District Judge Lisa Godbey Wood ruled in favor of the plaintiffs, stating that WOTUS was in violation of the Clean Water Act and the Administrative Procedure Act, and remanded it back to the EPA and the Army Corps of Engineers to try to bring it in compliance.

In the meantime, attorneys for industry groups such as the American Farm Bureau and the American Petroleum Institute argued that WOTUS should have been completely vacated because it is unlawful and the problems that Wood's court identified, "establish that there is no likelihood that the Rule will be reissued in remotely similar substantive form,"

Suddenly, the EPA stepped in and repealed it, a move that ASLA denounced firmly.

"The WOTUS rule was meant to facilitate enforcement of the Clean Water Act and keep American water resources safe," states its president Shawn T. Kelly, FASLA. "Instead, we're left with this repeal - which is the first step in rolling back clean water protections on a much larger scale. It is difficult for landscape architects to operate under the current patchwork of rules. ASLA supports replacing it with one clear, concise rule that defines which waters are subject to the Clean Water Act and addresses the real dangers of unchecked water contamination."

Chances are good that this has not run its course and will keep on rolling.

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January 18, 2020, 5:31 am PDT

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