EPA releases final WOTUS replacement rule
Environmental Protection Agency Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works R.D. James last week released a rule that succeeds the Obama administration’s Waters of the United States rule, which the Trump administration withdrew.
Wheeler and James released the new Navigable Waters Protection Rule at the National Association of Home Builders International Builders’ Show in Las Vegas.
“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,” Wheeler said.
“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.”
“Having farmed American land myself for decades, I have personally experienced the confusion regarding implementation of the scope of the Clean Water Act,” said James.
“Our rule takes a common-sense approach to implementation to eliminate that confusion. This rule also eliminates federal overreach and strikes the proper balance between federal protection of our nation’s waters and state autonomy over their aquatic resources. This will ensure that land use decisions are not improperly constrained, which will enable our farmers to continue feeding our nation and the world, and our businesses to continue thriving.”
“The Navigable Waters Protection Rule ends decades of uncertainty over where federal jurisdiction begins and ends,” EPA said in a news release.
“For the first time, EPA and the Army are recognizing the difference between federally protected wetlands and state protected wetlands. It adheres to the statutory limits of the agencies’ authority. It also ensures that America’s water protections — among the best in the world — remain strong, while giving our states and tribes the certainty to manage their waters in ways that best protect their natural resources and local economies.
“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, Va.; certain lakes, ponds and impoundments, such as Children’s Lake in Boiling Springs, Pa.; and wetlands that are adjacent to jurisdictional waters.
“This final action also details what waters are not subject to federal control, 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.”
In a call to reporters, officials emphasized that EPA will regulate intermittent streams, but not ephemeral waters.
The officials also emphasized their view that “the agencies’ Navigable Waters Protection Rule respects the primary role of states and tribes in managing their own land and water resources.”
“All states have their own protections for waters within their borders and many already regulate more broadly than the federal government. This action 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.”
EPA noted that the public comment period had generated more than 6,000 recommendations and approximately 620,000 comments. Once it is published in the Federal Register, the rule will go into effect in 60 days.
The officials also said they believe it will withstand any legal challenges. ❖
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