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Congress and President Trump seem to be in a race to rescind the Waters of the U.S. (WOTUS) regulation issued by the Obama administration.

The WOTUS regulation was a joint effort by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) to clarify the definition of water bodies that would come under their regulatory jurisdiction. The regulation was implemented in June 2015, but was blocked by the federal courts the following October. (Editor’s Note: For background on WOTUS, see Robertson’s blog posts on WOTUS regulations and why he supports WOTUS.)

Trump’s WOTUS executive order

President Trump issued an executive order in February directing the EPA and Corps to begin a review of WOTUS. Because the regulation had been implemented by the federal government under the Obama administration, rescinding or modifying it would require the same lengthy regulatory process, under the Administrative Procedure Act, that put the regulation in place. This process includes scientific justification for the action and public comment periods.

In June, the EPA and Corps began the process to rescind the WOTUS regulation and reinstate the regulations in place before WOTUS. The EPA and Corps would then begin a second regulatory process to redefine waters of the U.S. in a way more compatible with Trump administration policies. Completing just the first phase of this process could take a year or more.

House moves to exempt WOTUS

Last week, however, the U.S. House passed an amendment to an appropriations bill for fiscal year 2018 that would exempt the regulation from the Administrative Procedure Act. The amendment states that EPA and the Corps “may withdraw the Waters of the United States rule without regard to any provision of statute or regulation that establishes a requirement for such withdrawal.”

Senate may slow WOTUS exemption

The amendment may find tough sledding in the Senate as environmental groups mount an effort to have the language stricken from the bill. If the language makes it through the legislative process, it will certainly be signed by President Trump, allowing the administration to simply rescind the WOTUS regulation immediately.

Make Your Opinion on WOTUS Heard

In the meantime, the comment period is open for public input on the WOTUS rescission regulation, regardless of what happens with the legislation. If you feel strongly one way or another on WOTUS, now is the time to make it known.

Click here to go to the EPA website where you can find information on how to submit your comments. The comment period closes on Aug. 28.

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About the Author:

Gregg Robertson, Landscape Management's government relations blogger, is a government relations consultant for the Pennsylvania Landscape & Nursery Association (PLNA) and president of Conewago Ventures. From 2002 until May 2013 he served as president of PLNA. Reach him at

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