The U.S. Environmental Protection Agency (EPA) has offered a series of regulatory reforms to the 1972 Clean Water Act (CWA), replacing the Waters of the United States Rule (WOTUS) with the Navigable Waters Protection Rule (NWPR).
The administration says its new rule is necessary to protect states’ legitimate authority over land and water within their borders and to provide regulatory certainty to property owners while protecting drinking water and navigable waters across the country.
Conflicts Over Water Authority
Over time, with the encouragement of environmental lobbyists, federal agencies under multiple presidential administrations expanded the definition of the types of waters protected by CWA to include ephemeral waters and wetlands, including land that is only seasonally wet and is physically distant from and not directly feeding into navigable waterways. This brought bodies of water such as isolated ponds and abandoned gravel pits under the federal government’s regulatory authority.
Ruling in response to lawsuits challenging various definitions of the nation’s waters offered by different presidential administrations, in two separate cases the U.S. Supreme Court struck down expansive definitions of navigable waters, but without defining the limits of the federal government’s CWA authority.
In 2015 the EPA, under President Barack Obama, created WOTUS, removing the limiting word “navigable” from the federal government’s CWA definition. Federal courts, saying WOTUS delegated EPA authority beyond the limits allowed it in under Supreme Court precedents, blocked it from taking effect.
The Trump administration declined to defend WOTUS in court, instead developing NWPR to replace it.
Clarifying the Waters
NWPR categorizes different types of waters to delineate clearly between those over which the federal government has authority and those under state authority.
NWPR establishes four categories of federally regulated waters: territorial seas and traditional navigable waters; perennial and intermittent tributaries that connect to those waters; certain lakes, ponds, and impoundments (generally those developed or managed by the Army Corps of Engineers); and wetlands adjacent to jurisdictional waters.
NWPR also identifies waters not subject to federal control: features that contain water only in direct response to rain or snowfall; groundwater or ephemeral or seasonal wetlands not directly connected to navigable waters; many ditches, including most farm and roadside ditches; converted cropland; farm and stock watering ponds; and waste treatment systems.
‘Strikes the Proper Balance’
NWPR is necessary to define the limits of the federal government’s CWA authority, said EPA Administrator Andrew Wheeler in a January 24 statement released as the agency announced the rule.
“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 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.”
‘Restoring the Rule of Law’
NWPR is the Trump administration’s attempt to follow the CWA as it is written, not as environmental advocates would have it be reinterpreted to stop development, said Agriculture Secretary Sonny Perdue in a statement.
“President Trump is restoring the rule of law and empowering Americans by removing undue burdens and strangling regulations from the backs of our productive farmers, ranchers, and rural landowners,” Perdue said. “The days are gone when the federal government can claim a small farm pond on private land as navigable waters.
“Americans once again have the freedom to innovate, create, and grow,” said Perdue.
NWPR keeps Trump’s promise to simultaneously protect the nation’s waters and peoples’ property rights, said Sen. John Barrasso (R-WY), chairman of the Senate Committee on Environment and Public Works, in a statement.
“President Trump is delivering on his promise to give Americans clean water and clear rules,” said Barrasso. “Regulations must follow the law and be easy for Americans to understand.
“The old WOTUS rule put Washington in control of ponds, puddles, and prairie potholes, … insert[ing] Washington into local decision making, … putt[ing] unfair restrictions on how farmers, ranchers, and landowners could use their property,” Barrasso said.
States Applaud New Rule
Public officials, including governors, U.S. representatives, attorneys general, and state agency directors from dozens of states, applauded the new rule replacing WOTUS.
“I am pleased that President Trump’s administration has replaced the unlawful Obama-era WOTUS rule that I have been fighting since my time as attorney general,” said Texas Gov. Greg Abbott in a statement. “Like so many job-killing regulations from that era, the 2015 WOTUS rule thumbed its nose at constitutional and statutory limits that constrain the federal government.
“With today’s action, President Trump and his administration are honoring those limits and declaring a victory for the rule of law on behalf of landowners across the country,” Abbott said.
‘Clarity and Certainty’
NWPR will save farmers money, said Zippy Duvall, president of the American Farm Bureau Federation, in a statement.
“Farmers and ranchers care about clean water and preserving the land, which are essential to producing healthy food and fiber and ensuring future generations can do the same,” said Duval. “That’s why we support the new clean water rule … which provides clarity and certainty, allowing farmers to understand water regulations without having to hire teams of consultants and lawyers.”
The NWPR appropriately upholds the constitutional division of powers between the federal government and the states, said Lisa Nelson, CEO of the American Legislative Exchange Council, in a statement.
“The Trump administration’s new rule promotes federalism by defining which bodies of water are regulated by the federal government and giving greater control to state, tribal, and local governments,” Nelson said.
H. Sterling Burnett, Ph.D. ([email protected]) is a senior fellow at The Heartland Institute.
Sen. John Barrasso (R-WY): https://www.barrasso.senate.gov/public/; https://www.barrasso.senate.gov/public/index.cfm/contact-form