WASHINGTON — The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers announced a clearer definition of “waters of the U.S.” under the Clean Water Act that eliminates many seasonal streams, small waterways and wetlands from federal oversight.
Under the final rule, which will become effective 60 days after publication in the Federal Register, four categories of waters are federally regulated:
• Territorial seas and traditional navigable waters.
• Perennial and intermittent tributaries to those waters.
• Certain lakes, ponds and impoundments.
• Wetlands adjacent to jurisdictional waters.
All other waterways, including ephemeral streams, will fall under state jurisdiction.
The final rule details categories of exclusions that are not “waters of the U.S.,” such as features that only contain water in direct response to rainfall (ephemeral features); groundwater; many farm and roadside ditches; prior converted cropland; artificially irrigated areas; artificial lakes and ponds (water storage reservoirs, farm irrigation, stock watering); and storm water control features constructed in upland or in non-jurisdictional waters to convey, treat, infiltrate or store storm water runoff.
The final rule clarifies key elements related to the scope of federal Clean Water Act jurisdiction, including:
• Providing clarity and consistency by removing the proposed separate categories for jurisdictional ditches and impoundments.
• Refining the proposed definition of “typical year,” which provides important regional and temporal flexibility and ensures jurisdiction is being accurately determined in times that are not too wet and not too dry.
• Defining “adjacent wetlands” as wetlands that are meaningfully connected to other jurisdictional waters, for example, by directly abutting or having regular surface water communication with jurisdictional waters.
Regulatory Certainty
Earlier definitions of the 2015 WOTUS were considered too vague and subject to interpretation that critics said went to far with its jurisdiction stretching onto farmland ditches and field low spots that temporarily have water after a rainfall.
“EPA and the Army are providing much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects,” said EPA Administrator Andrew Wheeler.
“After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided.”
“Having farmed American land myself for decades, I have personally experienced the confusion regarding implementation of the scope of the Clean Water Act,” said R.D. James, Army for Civil Works assistant secretary.
“Our rule takes a common-sense approach to implementation to eliminate that confusion. This rule also eliminates federal overreach and strikes the proper balance between federal protection of our nation’s waters and state autonomy over their aquatic resources.
“This will ensure that land use decisions are not improperly constrained, which will enable our farmers to continue feeding our nation and the world, and our businesses to continue thriving.”
Pro
WOTUS was considered by many farm groups to be an over-reaching, burdensome regulation that extended beyond navigable waters to certain non-navigable water bodies and insolated waters and wetlands.
“Illinois farmers have a deep care and appreciation for the land and protection of clean water, both essential resources that provide our families and future generations the means to produce healthy food and fiber for the world. This action is the last step in the regulatory process to repeal the 2015 WOTUS rule and replace it with a common-sense rule protecting water quality,” said Illinois Farm Bureau President Richard Guebert Jr.
“The Navigable Waters Protection Rule provides a new, clear definition for WOTUS that protects the nation’s navigable waters from pollution and will result in economic growth across the country. It respects the right of the states to regulate water while providing farmers and landowners certainty and clarity,” said Roger Johnson, National Farmers Union president.
“Family farmers and ranchers have been confused by ambiguous water regulations for many years. Now that we have a more precise definition of WOTUS, we hope that farmers will better understand which kinds of water are subject to federal authority and which are not.
“But farmers don’t just need greater clarity – they also need access to clean, safe water for their families, their farms and their communities. These needs are not mutually exclusive; when regulating natural resources, EPA and the Army Corps of Engineers must balance certainty for farmers, ranchers and property owners with protections for our water supply.
“And while Farmers Union policy generally supports local decision-making, some states may be unprepared to regulate significantly more waterways. Moving forward, we will review the final rule closely to assess its full impacts on family farmers and ranchers and rural communities.”
Con
There were also organizations that did not agree with the move.
“The administration eliminated clean water protections to protect polluters instead of protecting people,” said Senior Attorney Blan Holman, leader of Southern Environmental Law Center’s Clean Water Defense Initiative.
“This rule is the culmination of an insider campaign to gut bipartisan protections that have safeguarded the nation’s water for decades and will endanger the health and environment of families and communities across the entire country.”
“This effort neglects established science and poses substantial new risks to people’s health and the environment. We will do all we can to fight this attack on clean water. We will not let it stand,” said Gina McCarthy, Natural Resources Defense Council president and CEO.