Today, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) are proposing a clear, understandable, and implementable definition of “waters of the United States” that clarifies federal authority under the Clean Water Act. Unlike the Obama administration’s 2015 definition of “waters of the United States,” today’s 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.”
State Farm Bureau presidents from across the nation attended an event today at the Environmental Protection Agency headquarters in Washington to witness the signing of the proposed Clean Water Rule. The following statement regarding the new Clean Water Rule can be attributed to American Farm Bureau Federation President Zippy Duvall.
“Farmers and ranchers work every day to protect our nation’s waterways and drinking water. For more than five years we have advocated for a new water rule that protects clean water and provides clear rules for people and communities to follow. This new rule will empower farmers and ranchers to comply with the law, protect our water resources and productively work their land without having to hire an army of lawyers and consultants.
“We want to protect land and water in the communities where we live and work. Clean water is our way of life. Preserving our land and protecting our water means healthy places to live, work and play. We believe this new Clean Water Rule is rooted in common-sense. It will protect our nation’s water resources and allow farmers to farm.
“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. 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.”
The agencies’ proposal is the second step in a two-step process to review and revise the definition of “waters of the United States” 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, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing 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.”
The agencies’ proposed rule would provide clarity, predictability and consistency so that the regulated community can easily understand where the Clean Water Act applies—and where it does not. 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 (e.g., ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; stormwater control features; and waste treatment systems.
The agencies believe this proposed definition 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. 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.” 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.
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 our 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 listened to those directly affected by the regulations, and this proposal balances the input the agencies received from a wide range of stakeholders.
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 January 10, 2019, and will host a listening session on the proposed rule in Kansas City, KS, on January 23, 2019.
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.