The Navigable Waters Protection Rule – A New Definition of WOTUS

A news release from the U.S. Environmental Protection Agency (EPA) on Thursday stated that, “Today, at an event at the National Association of Home Builders International Builders’ Show in Las Vegas, EPA Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works R.D. James will announce a new, clear definition for ‘waters of the United States.’ With the Navigable Waters Protection Rule, the [EPA] and the Department of the Army (Army) are delivering on President Trump’s promise to finalize a revised definition for ‘waters of the United States‘ that protects the nation’s navigable waters from pollution and will result in economic growth across the country.”

The release explained that, “The Navigable Waters Protection Rule ends decades of uncertainty over where federal jurisdiction begins and ends. For the first time, EPA and the Army are recognizing the difference between federally protected wetlands and state protected wetlands. It adheres to the statutory limits of the agencies’ authority. It also ensures that America’s water protections – among the best in the world – remain strong, while giving our states and tribes the certainty to manage their waters in ways that best protect their natural resources and local economies.

The revised definition identifies four clear categories of waters that are federally regulated under the Clean Water Act: the territorial seas and traditional navigable waters, like the Atlantic Ocean and the Mississippi River; perennial and intermittent tributaries, such as College Creek, which flows to the James River near Williamsburg, Virginia; certain lakes, ponds, and impoundments, such as Children’s Lake in Boiling Springs, Pennsylvania; and wetlands that are adjacent to jurisdictional waters.

“These four categories protect the nation’s navigable waters and the core tributary systems that flow into those waters.”

The release added that, “This final action also details what waters are not subject to federal control, including features that only contain water in direct response to rainfall; groundwater; many ditches, including most farm and roadside ditches; prior converted cropland; farm and stock watering ponds; and waste treatment systems.”

Wall Street Journal writers Katy Stech Ferek and Timothy Puko reported on Thursday that, “The Environmental Protection Agency released new federal clean-water regulations Thursday that are less restrictive than those adopted under the Obama administration, eliminating many seasonal streams, small waterways and wetlands from federal oversight.”

“Lobbying groups that represent U.S. businesses, farmers and landowners said the new rule will end a period of confusion for property owners who have complained about having to apply for federal permits to do work near smaller waterways.” the Journal article said.

Ferek and Puko explained that, “The 2015 rules being replaced required more property owners who wanted to build on or otherwise alter the landscape on private lands to apply for a federal permit, prompting criticism from business groups and landowners. Critics said Obama’s protections extended federal oversight to dry land and that it amounted to overreach on property-owner rights.

“The 2015 rule was challenged in court and was only put in place in about 20 states.”

Coral Davenport reported this week at The New York Times Online that, “The new rule, written by the Environmental Protection Agency and the Army Corps of Engineers, will retain federal protections of large bodies of water, as well as larger rivers and streams that flow into them and wetlands that lie adjacent to them.

But it removes protections for many other waters, including wetlands that are not adjacent to large bodies of water, some seasonal streams that flow for only a portion of the year, ‘ephemeral’ streams that only flow after rainstorms, and groundwater.

“Legal experts say that Mr. Trump’s replacement rule would go further than simply repealing and replacing the 2015 Obama rule — it would also eliminate protections to smaller headwaters that have been implemented for decades under the 1972 Clean Water Act,” the Times article said.

Background on WOTUS Definition Change

Recall that in February of 2017, the Los Angeles Times reported that, “President Trump stepped up his attack on federal environmental protections [on February 28, 2017] issuing an order directing his administration to begin the long process of rolling back sweeping clean water rules that were enacted by his predecessor.”

And in June of 2017, The New York Times reported that, “The Trump administration on [June 27, 2017] took a major legal step toward repealing a bitterly contested Obama-era regulation designed to limit pollution in about 60 percent of the nation’s bodies of water.”  At that time, EPA released “a proposal to recodify the law as it was written prior to 2015.”

In January 2018, EPA postponed the applicability date of the WOTUS rule by two years.

In December of 2018, the Trump administration proposed a new ‘Waters of the United States’ definition.

Then in September of 2019, The New York Times reported that, “The Trump administration on [September 12] announced the repeal of a major Obama-era clean water regulation that had placed limits on polluting chemicals that could be used near streams, wetlands and other bodies of water.”

Reaction to the Change

Senate Ag Committee Chairman Pat Roberts (R., Kans.) noted on Thursday that, “‘The original ‘WOTUS’ rule was nothing but a severe regulatory over reach.  The growing threat farmers were facing from the previous administration’s regulatory warpath would have only added costs to their businesses and stymied their ability to compete. I’m thankful this administration’s rule is a much more reasonable approach to regulation.”

Additional reaction on Twitter from Secretary of Agriculture Sonny Perdue and farm state lawmakers included the following: