On Tuesday, the Environmental Protection Agency and the Army Corps of Engineers proposed a new definition that clarifies federal authority under the Clean Water Act. The proposal would replace the controversial and court-stricken 2015 definition of "waters of the U.S." (WOTUS) with one “that restores the rule of law and the primary role of states in managing their land and water resources,” according to EPA administrator Andrew Wheeler.
In a press briefing ahead of the release, Wheeler said the agency’s proposal would replace the 2015 definition with a “clearer and easier-to-understand definition that will result in significant cost savings, protect the nation’s navigable waterways and reduce barriers to important economic and environmental projects.”
Currently, because of litigation, the 2015 rule is in effect in 22 states, while the previous regulation issued in the 1980s remains law in the other 28 states. Wheeler said the EPA proposal would establish national consistency and provide greater certainty to states and landowners.
“The three overarching principles that I want to ensure are in this proposal are, one, that property owners should be able to stand on their property and be able to tell if their water is federal or not without hiring outside professionals. Two, that we are clearly defining the difference between fairly protected waterways and state-protected waterways, and three, that we are providing the certainty the American public needs and in a manner that will be upheld by the courts, which is why we are following the clear statutory language of the Clean Water Act and the Supreme Court decisions,” Wheeler said.
Wheeler explained that, for the first time, EPA is “clearly defining the differences between federally protected wetlands and state-protected wetlands.” He added that this will help a landowner understand whether a project on his or her property will require a federal permit or not without spending thousands of dollars on engineering and legal professionals.
Traditional navigable waters are still included in the updated WOTUS definition; tributaries to those navigable waters would still be included within the definition. Certain ditches, such as those used for navigation or those affected by the tide, still would remain not covered by the federal jurisdiction, he explained. Also included are certain lakes and ponds, impoundments and wetlands that are adjacent to a water of the U.S. and would still be protected under the Clean Water Act.
The updated rule also details waters that are not considered waters of the U.S. Wheeler explained that this “includes features that only contain water during or in response to a rainfall; groundwater, which is never supposed to be included; most ditches, including most roadside or farm ditches; prior converted cropland would be out, as will stormwater control features and wastewater and waste treatment systems.”
Wheeler also addressed misinformation stating that 60% of the nation’s streams would lose federal protections under the proposal, with one report saying 80% in California.
“The map the previous Administration used to support the 60% talking point does not distinguish between the ephemeral or intermittent waters, which would be treated differently under our proposed rule,” Wheeler explained. “There is no nationwide map that identifies all the waters of the United States. As a result, this estimate should not be used to characterize the agency’s current proposal.”
The agencies will take comment on the proposal for 60 days after publication in the Federal Register and will hold a public listening session as well.
Ag industry welcomes rule update
Secretary of Agriculture Sonny Perdue said the WOTUS rule is “regularly singled out as particularly egregious, as it impedes the use of their own land and stifles productivity.”
He added, “Farmers and ranchers are exceptional stewards of the environment, and states have their own standards as well. This welcome action from the EPA and Army Corps will help bring clarity to Clean Water Act regulations and help farmers know where federal jurisdiction begins and ends.”
National Corn Growers Assn. (NCGA) president Lynn Chrisp welcomed the bill. “With a clear understanding of what is and is not jurisdictional under the Clean Water Act, farmers can implement stewardship practices such as grass waterways and buffer strips without the burden of bureaucratic red tape or the fear of legal action,” Chrisp said. “NCGA looks forward to fully reviewing the new WOTUS rule to ensure that it provides clear jurisdictional boundaries to farmers, protects our nation’s water and can be implemented without confusion.”
Wheat growers also were praiseworthy of the updated rule. National Association of Wheat Growers president Jimmie Musick said, “Wheat growers know the importance of protecting our resources in order to sustain our farming operations and feed a growing world population. However, we need regulatory certainty so we can remain in compliance with the law.
“We believe the new proposed rule does just this and reduces ambiguity in the law. We welcome the new proposed rule and plan on submitting comments,” Musick said.