Washington Post writer Scott Dance reported in Saturday's paper that, "The Biden administration on Friday imposed a rule expanding the definition of waterways that the U.S. Environmental Protection Agency has…
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 #NWPR respects where federal regulations apply, giving states and tribes more flexibility to determine how to best manage waters within their borders. Read the new #WOTUS rule here: https://t.co/BNLjk2bw2Q pic.twitter.com/J68tfZiVzp— U.S. EPA (@EPA) January 23, 2020
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.
Today at @NAHB, I along with @asacivilworks was proud to unveil the new Navigable Waters Protection Rule (#NWPR) implementing the original intent of congress and the #CleanWater Act while respecting the rights of states and tribes, ending decades of regulatory uncertainty. #WOTUS pic.twitter.com/shVcYqOmsN— EPA Administrator Andrew Wheeler (@EPAAWheeler) January 23, 2020
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:
.@SecretarySonny today praised @EPA for defining the Waters of the United States (WOTUS) rule with the Navigable Waters Protection Rule - https://t.co/FEoLhFNVB2 pic.twitter.com/O2ZTOFrPpn— Dept. of Agriculture (@USDA) January 23, 2020
Appreciate the administration’s cont. efforts to replace WOTUS & provide certainty under the new NWPR rule, which seeks to cover traditional navigable waters & encourages collaboration w/ states, tribes + localities, rather than override their authority. https://t.co/WbqJurX7On— Senator John Hoeven (@SenJohnHoeven) January 23, 2020
With this final rule, South Dakota farmers, ranchers, and small businesses can benefit from a clear, predictable definition of Waters of the U.S. I applaud @POTUS for honoring the property rights that are so fundamental to this great country. https://t.co/HO6T4q73pv— Rep. Dusty Johnson (@RepDustyJohnson) January 23, 2020
I applaud @RealDonaldTrump’s administration for improving the definition of WOTUS. This helps to put Nebraskans back in charge of our water resources and addresses the higher costs that the Obama-era regulations would have put on all Americans.https://t.co/Njbrohy86h— Senator Deb Fischer (@SenatorFischer) January 23, 2020
While continuing to protect our nation's waterways, the @EPA & @ASACivilWorks' new WOTUS rule will provide clarity to the regulatory framework while ending decades of federal overreach. Thank you @POTUS for standing up for Oklahoma's farmers & landowners. https://t.co/ENHYePvZze— Frank Lucas (@RepFrankLucas) January 23, 2020
Replacing the onerous #WOTUS rule empowers states to regulate their non-navigable waters and is much more aligned with the original intent of the law. Once again, @realDonaldTrump fulfills his promise to rein in the federal government.— Rep. Adrian Smith (@RepAdrianSmith) January 23, 2020
.@SenateMajLdr: I applaud @POTUS @RealDonaldTrump, @EPAAWheeler & @ASACivilWorks for standing up for middle class families in #Kentucky. Replacing the Obama EPA’s #WOTUS rule with one that protects our waters while also being more workable is a win for farmers & small businesses.— Senator McConnell Press (@McConnellPress) January 23, 2020
For years, #Iowans have told me what an egregious overreach Obama’s WOTUS rule was. I’m proud that we’ve successfully scrapped this Obama-era rule & are providing the predictability & certainty our hardworking farmers, manufacturers, & landowners deserve.https://t.co/lyLCJj6w7s— Joni Ernst (@SenJoniErnst) January 23, 2020
The @EPA’s new definition for the #WOTUS rule helps clarify jurisdiction over waterways and reduces unnecessary regulations from the overreaching Obama-era rule. This allows KS farmers, ranchers & other landowners to better utilize water resources available to them. pic.twitter.com/6oXDUqtmAR— Senator Jerry Moran (@JerryMoran) January 23, 2020
Read my statement here on #NWPR, the new @EPA rule clarifying 'navigable waters' and read the @EPAregion3 press release here: https://t.co/B2PkkQF07n pic.twitter.com/ZCLjWAEhKH— Glenn 'GT' Thompson (@CongressmanGT) January 23, 2020
The Obama-era WOTUS rule was the poster child for government overreach—allowing the government to regulate even the smallest stream or puddle on a landowner’s property. The Trump Administration’s final rule provides much-needed clarity...— Rick W. Allen (@RepRickAllen) January 23, 2020
I applaud @realDonaldTrump for keeping his promise to repeal the ill-conceived #WOTUS rule. The new #NWPR is a common-sense fix that protects our land/waterways & allows our economy to grow. @EPA https://t.co/6MVeqUB1OV— Ted Yoho (@RepTedYoho) January 23, 2020
Thank you @POTUS and @EPAAWheeler for rewriting #WOTUS. This is a common-sense change that gives landowners the flexibility to maintain their own land without overreaching federal input. https://t.co/xEvR0bt1M3— Rep. Doug LaMalfa (@RepLaMalfa) January 23, 2020
We can protect our natural resources without infringing on the rights of millions of Americans. I look forward to seeing the positive economic and conservation impacts of this new #WOTUS rule. https://t.co/1wNgvKL0Uk— Rep. Austin Scott (@AustinScottGA08) January 23, 2020
This new definition for #WOTUS will provide clarification for farmers, ranchers and landowners across the West & the U.S. @POTUS is keeping promises to Americans who have been negatively impacted by overregulation while strengthening protections for our nation's navigable waters. https://t.co/HWepRlBdhl— Rep. Dan Newhouse (@RepNewhouse) January 23, 2020
This is about commonsense. We can protect MT water, support MT ag, and protect our property rights without overbearing regulations from DC. I applaud @realDonaldTrump & @EPAAWheeler for rewriting the burdensome Obama-era #WOTUS. https://t.co/WoU9a377TY— Steve Daines (@SteveDaines) January 23, 2020
I’m grateful to @realdonaldtrump and his administration for fulfilling the commitment to roll back #WOTUS, and protecting our waters while also removing overreaching federal regulation. @EPA @USACEHQ https://t.co/Tu15F3GTw0 https://t.co/1EzwWVjT9V— U.S. Senator Cindy Hyde-Smith (@SenHydeSmith) January 23, 2020
The @EPA released their new rule to replace the previous admin’s overreaching #WOTUS rule. The new rule protects the rights of landowners, states and tribal governments. MORE: https://t.co/eqxdiwQOaC— Senator Mike Rounds (@SenatorRounds) January 24, 2020
More gr8 news for farmers: Trump admin rolls back harmful WOTUS rule from Obama & REDUCES fed govt regs New waters of US definition DOESNT affect roadside ditches farm ponds waste treatment systems prior converted cropland etc— ChuckGrassley (@ChuckGrassley) January 25, 2020