EPA Replaces WOTUS with Navigable Waters Protection Rule

12:35PM Jan 23, 2020
Farm pond 5
Farm pond next to a corn field
( Darrell Smith )

The troubled 2015 Waters of the U.S. (WOTUS) rule introduced by the Obama administration in 2015 to define which waters are regulated by the Clean Water Act was officially replaced today by the Navigable Waters Protection Rule. 

“EPA and the Army (Corps of Engineers) 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 announcing the new rule on a press call. “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.”

The WOTUS rule was criticized by farm groups over vague language that left farmers and landowners unable to determine whether their property was regulated by the rule. And it was criticized by President Donald Trump when he spoke to the American Farm Bureau Federation earlier this week.

“So, this rule gave bureaucrats virtually unlimited authority to regulate stock tanks, drainage ditches and isolated ponds as navigable waterways and navigable water,” he said. “You believe that? Sometimes you'd have a puddle, a little puddle, and they’d consider that a lake. As long as I'm President, government will never micromanage America's farmers.

EPA sought to clarify the edges of that regulatory authority in the new Navigable Waters Protection Rule.

“The revised definition identifies four clear categories of waters that are federally regulated under the Clean Water Act: the territorial seas and traditional navigable waters, like the Atlantic Ocean and the Mississippi River; perennial and intermittent tributaries, such as College Creek, which flows to the James River near Williamsburg, Virginia; certain lakes, ponds, and impoundments, such as Children’s Lake in Boiling Springs, Pennsylvania; and wetlands that are adjacent to jurisdictional waters,” Wheeler explained.

The new rule also spells out 12 specific exemptions from jurisdiction under the Clean water act “including features that only contain water in direct response to rainfall; groundwater; many ditches, including most farm and roadside ditches; prior converted cropland; farm and stock watering ponds; and waste treatment systems.”

The new rule was immediately welcomed by farm groups and leaders like Senate Agriculture Committee Chairman Pat Roberts (R-Kan.)

“The original ‘WOTUS’ rule was nothing but a severe regulatory over reach,” said Roberts in a press release. “The growing threat farmers were facing from the previous administration’s regulatory warpath would have only added costs to their businesses and stymied their ability to compete. I’m thankful this administration’s rule is a much more reasonable approach to regulation.”

The new rule is almost certain to face a legal challenge. 

“This effort neglects established science and poses substantial new risks to people’s health and the environment,” said President and CEO of the Natural Resources Defense Council who served as EPA director when the 2015 WOTUS rule was drafted. “We will do all we can to fight this attack on clean water. We will not let it stand.”

More information, including the complete draft of the rule, can be found at the EPA’s website.

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