March 08, 2019

The proposed WOTUS rule: How do states regulate nonfederal wetlands?

Phillip Bower and Megan McLean

The Trump administration announced its proposed replacement rule defining “waters of the United States” in December 2018. The U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army (Army) (collectively, the “agencies”) note that, in accordance with section 101(b) of the Clean Water Act (CWA), the proposed rule would “recognize and respect the primary responsibilities and rights of States and Tribes to regulate and manage their land and water resources.” (For additional discussion of the agencies’ treatment of CWA section 101(b) in the context of this rule, see Mark A. Ryan’s article “The WOTUS Rule Repeal” in the Fall 2018 issue of Natural Resources & Environment.) In fact sheets accompanying the proposal, the agencies note that “states and tribes have existing regulations and programs that apply to waters within their borders, whether or not they are considered ‘waters of the United States.’” 

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