One of the Obama Environmental Protection Agency’s (EPA) greatest federal overreaches to control practically every drop of water on U.S. land was finally buried for good by the Trump administration. In particular, EPA Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works R.D. James, jointly announced a new, clear definition for “Waters of the United States” (WOTUS) on January 23rd. This new definition will allow the Clean Water Act (CWA) to accomplish what it was intended to do when it was first created in 1948, namely to protect the nation’s navigable waters from problematic pollution without impeding economic growth.
As expected, environmental lobbies are screaming that the country’s waters are being abandoned. California’s attorney general called the new rule unlawful and some groups vowed to sue the federal government for removing vital safeguards to our rivers, lakes and streams.
They are totally misguided. Here’s the story:
The CWA is the main U.S. federal law governing water pollution. The full title of the modern version of this rule is the Federal Water Pollution Control Act Amendments of 1972. The CWA specifies that, “the discharge of any pollutant by any person shall be unlawful.”
The American Bar Association explains:
“The discharge of a pollutant” is defined broadly to include “any addition of any pollutant to navigable waters from any point source.” Particularly relevant to real estate developers in projects involving creeks, ditches, ponds, and wetlands, “[t]he Secretary [of the Corps] may issue permits, after notice and opportunity for public hearings, for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” “Navigable waters” are defined as “the waters of the United States, including the territorial seas.” While “navigable waters” is defined, therefore, “waters of the United States” is not defined, leaving presidential administrations from Nixon to Reagan, and then Obama to Trump, to wrestle with the scope and jurisdiction of the EPA and Corps in interpreting the meaning of “waters of the United States” [WOTUS].
In 2015, under the Obama Administration, the EPA and the Corps re-wrote and expanded the WOTUS rule to include:
(1) tributaries that have physical signs of flowing water, even if they don’t run all year round, and ditches that “look and act” like tributaries;
(2) expanded EPA oversight to any body of water within 1,500 feet of another water body already covered by the rule; and
(3) extended protections to regional water features, such as prairie potholes and coastal bays.
This proved controversial, because the agricultural, manufacturing, and real estate development industries found the 2015 rule to be a massive expansion of EPA and Corps regulatory oversight.
In fact, 28 states successfully sought injunctions to block enforcement of the 2015 WOTUS Rule in federal courts around the country, reverting those states to pre-2015 WOTUS interpretations during the pendency of the lawsuits and leaving the remaining states subject to 2015 WOTUS Rule.
The new rule just announced by Wheeler and James gives a more reasonable interpretation of WOTUS. It finally provides much needed regulatory certainty and predictability for America’s farmers, landowners and businesses to advance the economy and more specifically to speed up infrastructure projects such as roads, dams, bridges and all land development. All of the latter were previously stranded by Obama’s 2015 ruling to rewrite the Clean Water Acts definition of Navigable Water. The 2015 ruling effectively classified every low spot on land that could fill up with rain water and eventually flow into an intermittent creek or stream that could wend its way to a river, as being included in the definition of WOTUS and so “navigable waters.”
Trump promised to right this egregious wrong early on in his presidency and now has finally delivered. The current EPA and Army Corps of Engineers, long responsible for the nation’s navigable waters, repealed the Obama ruling for four major reasons.
First, it was determined that the 2015 ruling exceeded the legal limits of the Clean Water Act authorization of EPA authority, which was also reflected in the successful legal challenges to the rule.
Second, the 2015 rule failed to recognize, preserve and protect the states’ rights to prevent, reduce or eliminate pollution and to plan for the development of land and water resources.
Third, to avoid interpretations of the Clean Water Act that push the envelope of their statutory and constitutional authority to encroach on State responsibilities.
Fourth, both EPA and the Army found inadequate technical support for EPA to have created the 2015 ruling in the first place.
Having worked in agriculture for decades, the senior author of this article (Dr. Lehr) has experienced the confusion regarding the implementation of Obama’s 2015 directive. The new rule eliminates the federal overreach and strikes a balance between federal protection of the nation’s water ways and state autonomy over water resources.
The water regulated by the federal government now falls into four categories:
- the nearshore portions of the oceans and the major rivers flowing into them,
- perennial and intermittent tributaries to the above,
- some larger lakes and ponds, and
- wetlands adjacent to federal waters.
Specifically, the new rules will exclude farm and roadside ditches, all groundwater, farm watering ponds and all water bodies that form as a result of a recent rain. For the first time, the EPA and the Army are also recognizing the differences between federal and state wetlands.
This action by the Trump administration came after consideration of about 620,000 public comments which included 6,000 recommendations. This final rule ensures America’s protection of its vast water supplies, the best in the world, while giving the states the certainty to manage their waters in ways that best protect their natural resources and local economies.
Bravo to the EPA and the Army for effectively taking most of our waters out of the realm of politics.