The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers have released a revised rule defining what constitutes a “waters of the United States” for purposes of the Clean Water Act.

The Trump administration says the proposed rule contains a straightforward definition that will 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.” 

The agencies’ proposal is the second step in a two-step process to review and revise the definition of “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, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated. It also details what are not “waters of the United States,” such as features that only contain water during or in response to rainfall, groundwater, many ditches, including most roadside or farm ditches; prior converted cropland, stormwater control features and waste treatment systems.

The WOTUS rule was originally developed by the Obama Administration’s EPA and the Corps. It expanded the EPA’s federal jurisdiction and scope of water bodies subject to Clean Water Act requirements. In January, EPA postponed the applicability date of the WOTUS rule by two years. In June 2017, the EPA and the Corps began a replacement rulemaking process to gather input and re-evaluate the definition of WOTUS. In February 2017, President Trump signed an executive order providing relief from the WOTUS rule.

The agencies believe the proposed definition released Dec. 11 appropriately identifies waters that should be subject to regulation under the Clean Water Act while respecting the role of states and tribes in managing their own land and water resources. The agencies’ proposal gives states and tribes more flexibility in determining how best to manage their land and water resources while protecting the nation’s navigable waters as intended by Congress when it enacted the Clean Water Act.  

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 that the agencies have considered in developing this proposal.

The agencies will take comment on the proposal for 60 days after publication in the Federal Register. EPA and the Army will also hold an informational webcast on Jan. 10, 2019, and will host a listening session on the proposed rule in Kansas City, KS, on Jan. 23, 2019. 

What are people saying about the proposed rule? 

“When I meet with the men and women of American agriculture, one of their chief concerns is always the overreach of federal regulations,” said Agriculture Secretary Sonny Perdue. “The WOTUS rule is regularly singled out as particularly egregious, as it impedes the use of their own land and stifles productivity. 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.” 

“The new rule released today rids the WOTUS definition of the broad federal overreach embodied in the rule written by the previous administration,” said Chuck Conner, president and CEO of NCFC. “With this action, the Trump administration is continuing its commitment to defending farmers, ranchers and growers from burdensome and costly regulations that result in little impact on the environment.” 

“After years of uncertainty stemming from the 2015 WOTUS rule, the Trump Administration’s new water rule represents a fresh start for America’s cattle producers,” said Kevin Kester, president of the National Cattlemen’s Beef Association. “NCBA advocated for a new water rule that is easy to understand and implement. The administration listened. The proposed water rule provides safeguards to keep our waters clean and clear rules for landowners to follow. We look forward to engaging with the Environmental Protection Agency and Army Corps of Engineers to finalize the rule.”

“We thank the EPA and Acting Administrator Andrew Wheeler for fulfilling the administration’s pledge to rewrite the onerous Obama-era WOTUS law,” said Robert McKnight, Jr., president of the Texas and Southwestern Cattle Raisers Association. “Their commitment to creating a new rule that is easily interpreted by property owners and that limits federal intrusion on private property rights signals that the new proposal is moving in the right direction. However, as with any rule of this scope and magnitude, it will take some time to thoroughly review the plan and ensure cattle producers are not needlessly burdened as they would have been under the previous version.” 

“The fertilizer industry is encouraged by EPA’s and the Department of the Army’s new WOTUS definition, a great first step towards a sustainable national water policy that both protects the environment and facilitates smart economic development,” said The Fertilizer Institute President and CEO Chris Jahn.“We believe the new plan more clearly defines which waters are subject to federal jurisdiction, which waters are subject to state protection and how the rule will be implemented, clarity that was not found in the 2015 rule.”

The National Association of Wheat Growers plans to submit comments on the proposed rule. 

““NAWG is encouraged by today’s action by the EPA and Army Corps of Engineers to increase clarity and transparency around the Waters of the U.S. regulation,” said NAWG President Jimmie Musick. “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.” 

House Agriculture Committee Chairman K. Michael Conaway, R-Texas, said the announcement marks a “hopeful new chapter for farm country.”

“The Trump administration’s proposed definition of “waters of the U.S.” is the next step to replacing the burdensome 2015 WOTUS rule and to creating streamlined and simplified rules for all landowners,” Conaway said. “I applaud this administration for listening to concerns raised by farmers and ranchers and their representatives in Congress. I am eager to see a rule that restores integrity to the regulatory process and supports American agriculture as it seeks to preserve our natural resources.”

“We appreciate the months of hard work that the administration, especially the EPA and Army Corps of Engineers, invested in making sure the new Clean Water Rule was done right,” said American Farm Bureau President Zippy Duvall. “Unlike the 2015 WOTUS rule, this new rule protects our resources, respects the law and provides greater clarity so the agencies and the public can identify regulated federal waterways. We will further analyze this new rule in the coming days and will suggest further refinements during the comment period.” 

 “While ASA will review the rule in greater detail before submitting formal comments, we are pleased that it is based on the standard set out by the late Supreme Court Justice Antonin Scalia in Rapanos v. United States that the CWA should apply only to ‘navigable waters’ connected by a surface flow at least part of the year, with other waters to be regulated by the states,” said American Soybean Association president and soybean farmer from Clinton, Ky, Davie Stephens. 

“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,” said National Corn Growers Association President Lynn Chrisp. “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.”

More information including a pre-publication version of the Federal Register notice, the supporting analyses and fact sheets are available at: https://www.epa.gov/wotus-rule.  

Watch the Senate Agriculture Committee talk about the WOTUS rule at https://www.facebook.com/senateagGOP/videos/780908748929885/

Source: National Council of Farmer Cooperatives, NCBA, Texas and Southwestern Cattle Raisers Association, NAWG, USDA, Office of Rep. Mike Conaway, EPA, ASA, NCGA, AFBF, The Fertilizer Institute