Dec 11, 2018‘Waters of the U.S.’ revision proposed by EPA
U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) on Dec. 11 proposed “a clear, understandable and implementable definition of waters of the United States” that clarifies federal authority under the Clean Water Act.
The proposal contains a straightforward definition that would result in significant cost savings, protect the nation’s navigable waters, help sustain economic growth and reduce barriers to business development.
“Our proposal would replace the Obama EPA’s 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners the certainty they need to manage their natural resources and grow local economies,” said EPA Acting Administrator Andrew Wheeler. “For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.”
Following Trump’s Executive Order
The agencies’ proposal is the second step in a two-step process to review and revise the definition of “waters of the United States.” It is consistent with President Trump’s February 2017 Executive Order, entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” The Executive Order states that it is in the national interest to ensure that the nation’s navigable waters are kept free from pollution. At the same time, to promote economic growth, minimizing regulatory uncertainty and show due regard for the roles of Congress and the states under the Constitution.
“EPA and the Army together propose this new definition that provides a clear and predictable approach to regulating ‘waters of the United States.’ We focused on developing an implementable definition that balances local and national interests under the Clean Water Act,” said R.D. James, Assistant Secretary of the Army for Civil Works. “I have heard from a wide range of stakeholders on Clean Water Act implementation challenges. This proposed definition provides a common-sense approach to managing our nation’s waters.”
Under the agencies’ proposal, traditional navigable waters (and tributaries to those waters), impoundments of jurisdictional waters and wetlands adjacent to jurisdictional waters would be federally regulated, as well as certain ditches, lakes and ponds.
It also details what are not “waters of the United States,” such as features that only contain water during or in response to rainfall. The list includes ephemeral features, groundwater, many roadside and farm ditches, prior converted cropland, storm-water control features and waste treatment systems.
States and tribes
States and many tribes have existing regulations that apply to waters within their borders, whether or not they are considered “waters of the United States.” Under the proposal, states and tribes would have more flexibility in managing their land and water resources while protecting the nation’s navigable waters as intended by Congress when it enacted the Clean Water Act.
Robust, publicly accessible data is also a key component of common sense, cost-effective environmental protection. In response to requests from some states, EPA and the Army are exploring ways the agencies can work with federal, state and tribal partners to develop a data or mapping system that could provide a clearer understanding of the presence or absence of jurisdictional waters.
The agencies invited written pre-proposal recommendations and received more than 6,000 recommendations. EPA and Army representatives listened to those directly affected by the regulations and considered their input in creating this proposal.
The agencies will take comment on the proposal for 60 days after publication in the Federal Register. The EPA and Army will also hold an informational webcast on Jan. 10, 2019. In addition, they’ll host a listening session on the proposed rule in Kansas City, Kansas, on Jan. 23, 2019.
More information including a pre-publication version of the Federal Register notice, the supporting analysis and fact sheets are available at https://www.epa.gov/wotus-rule.
Perdue liks plan
U.S. Secretary of Agriculture Sonny Perdue praised the announcement that the EPA and Army are fulfilling President Trump’s pledge to repeal and replace the Waters of the United States rule.
Perdue issued the following statement:
“When I meet with the men and women of American agriculture, one of their chief concerns is always the overreach of federal regulations. The WOTUS rule is regularly singled out as particularly egregious, as it impedes the use of their own land and stifles productivity. 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. President Trump is making good on his promise to reduce burdensome regulations to free our producers to do what they do best — feed, fuel and clothe this nation and the world.”
California Farm Bureau reacts
The president of the California Farm Bureau Federation welcomed the release.
“We will review the proposal carefully in the hope it will restore balance to enforcement of the Clean Water Act,” CFBF President Jamie Johansson said. “The existing WOTUS rule has produced little beyond confusion and litigation. (It) has undermined farmers’ efforts to work cooperatively with government agencies to protect water and land.”
Farm Bureau has advocated for a rewrite of the 2015 WOTUS rule because of the extensive authority it gave to federal agencies to regulate routine farming activities.
“Farmers want to do the right thing for the land, water and other natural resources under their care,” Johansson said. “Doing the right thing and complying with the law should be clear and easy to understand. We hope the new Clean Water Rule will provide the clarity farmers and ranchers need to allow the continued production of food and farm products while conserving natural resources.”
The California Farm Bureau Federation works to protect family farms and ranches on behalf of nearly 36,000 members statewide. It is part of a nationwide network of nearly 5.6 million Farm Bureau members.
