WOTUS’ replacement has arrived! Though many celebrate, the new water rule will usher in new wave of litigation that may last years.
On January 23, the Environmental Protection Agency (EPA) and the Department of the Army (Army) published their final rule replacing the 2015 Waters of the U.S. (WOTUS) rule. The final rule—called the “Navigable Waters Protection Rule” (NWPR) —is the second step of the EPA’s two-step process to repeal and replace the 2015 WOTUS rule that began in 2017 following an executive order from President Donald Trump.
The EPA and the Army said the new rule sets out a clear definition of what is or is not a waters of the U.S.
“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 EPA Administrator Andrew Wheeler in the joint announcement.
“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 days are gone when the Federal Government can claim a small farm pond on private land as navigable waters.”
R.D. James, Assistant Secretary of the Army for Civil Works, said that he has experienced this confusion himself when he farmed in the past.
“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 final rule is the culmination of a series of regulatory actions that began back in 2017 following Trump’s Feb. 28 executive order, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”
The NWPA was first introduced as a proposed rule in December 2018. At the time, it was hailed by Zippy Duvall, president of the American Farm Bureau Federation, as “the Christmas present of a lifetime” for farmers and ranchers.
That initial version of the rule had six categories of jurisdictional waters under the Clean Water Act—i.e., waters of the U.S. However, the final version has only four. According to a pre-publication version of the final rule, they are, with examples from the EPA:
• 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.
The NWPA also outlines 12 different types of waters that are not federally jurisdictional, i.e., not waters of the U.S.:
• Groundwater, including groundwater drained through subsurface drainage systems;
• Ephemeral features that flow only in direct response to precipitation;
• Diffuse stormwater runoff and directional sheet flow over upland;
• Ditches that are not traditional navigable waters, tributaries, or that are not constructed in adjacent wetlands, subject to certain limitations;
• Prior converted cropland;
• Artificially irrigated areas that would revert to upland if artificial irrigation ceases;
• Artificial lakes and ponds that are not jurisdictional impoundments and that are constructed or excavated in upland or non-jurisdictional waters;
• Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining, construction activity, or similar;
• Stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;
• Groundwater recharge, water reuse, and wastewater recycling structures constructed or excavated in upland or in non-jurisdictional waters; and
• Waste treatment systems.
The final rule will take effect 60 days after the final rule is published in the Federal Register. As of press time, that had not happened. The pre-publication version of the final rule can be found online HERE.
Final rule reception
The reactions from the agricultural world were predictably ecstatic.
“The days are gone when the Federal Government can claim a small farm pond on private land as navigable waters,” said U.S. Secretary of Agriculture Sonny Perdue in the department’s official statement.
National Cattlemen’s Beef Association (NCBA) President Jennifer Houston had much the same to say.
“This is the last regulatory step in a long-fought battle to repeal the 2015 WOTUS rule and replace it with common-sense regulation.”
“It will be litigated by every environmental advocacy group out there.”
The American Farm Bureau Federation welcomed the new rule and voiced hope that it will lead to greater cooperation with farmers and ranchers.
[Edit — Monday, Feb. 3, 2020, 3 pm (MT): The original version of this story described the Western Governors Association as having applauded the WOTUS replacement. This was incorrect.
The group’s comments were in relation to the Trump Administration’s decision to withdraw the Water Supply Rule, which was announced at the same time as the WOTUS replacement announcement.
We apologize for this mistake and welcome corrections from readers and the public.]
The Family Farm Alliance had a more guarded tone, with Executive Director Dan Keppen saying, “At first glance, rule appears to provide a significant level of certainty with regard to what falls in the definition of WOTUS. It establishes a regulatory structure that moves in the direction of bringing clarity to [Clean Water Act] regulation by establishing what categories meet the definition under WOTUS. Just as importantly, is explains what does not.”
Not everyone was pleased, of course.
Environmental groups well known for litigation were just as quick with their stark condemnation of the new rule. Most groups characterized the new rule as certain to lead to massive increases in pollution and destruction of waterways, with several pledging litigation.
“River basins are like trees, you can’t put poison at the base of a tree and not expect it to destroy the trunk and leaves” said Jen Pelz, Rio Grande Waterkeeper and Rivers Program Director at WildEarth Guardians, in the group’s response.
“We need clean water and living rivers in the West for both people and the environment. This rule undermines basic protections that ensure that the commons are protected and sustained for future generations.”
Collin O’Mara, president and CEO of the National Wildlife Federation, called the rule misguided and a threat to the nation, its drinking water, and its wildlife in the group’s response to the final rule.
“Since the administration refuses to protect our waters, we have no choice but to ask the courts to require the EPA to follow the law. We simply cannot afford to lose protections for half of our remaining wetlands, nor can we take any unnecessary chances with our drinking water.”
“This sickening gift to polluters will allow wetlands, streams and rivers across a vast stretch of America to be obliterated with pollution,” said Brett Hartl, government affairs director at the Center for Biological Diversity in the group’s official response to the rule.
“People and wildlife need clean water to thrive. Destroying half of our nation’s streams and wetlands will be one of Trump’s ugliest legacies. We’ll absolutely be fighting it in court.”
What now? Next?
Though it might seem like this WOTUS replacement closes the book on the story of the waters of the U.S., it is just the closing of another chapter. There’s more to go on this story, possibly for years.
“There will be litigation,” said Scott Yager, NCBA’s Chief Environmental Council, in no uncertain terms on a recent edition of NCBA’s Beltway Beef podcast.
“Commenting in the comment process, as arduous and boring as it might seem, actually produces results and this new Navigable Waters Protection Rule was an example of that.”
“It will be litigated by every environmental advocacy group out there.”
Yager pointed out that the same groups pledging to litigate the new rule are currently fighting the repeal of the 2015 WOTUS rule, which happened back in September 2019.
“We’re actually stepping up into those cases to defend the repeal of the WOTUS rule and here we’re likely going to step up and defend the Trump administration’s action for the Navigable Waters Protection Rule to try to fight back these activists who are trying to challenge it in court and have some finality in this situation once and for all.”
Despite this dark cloud on the future, Yager told cattle producers that the new rule is something to celebrate and to be proud of.
“Because of the outreach from our grassroots members throughout the comment process, which took place over the past year, we were able to get some really good, strong, positive comments to the government, as well as technical comments where we supported some parts of it and criticized other parts of it and asked for recommended changes. In fact, as we’re looking through the rule today, we’re seeing that they actually made some of those changes that we recommended in our comments to the government.
“So, let that be an example of how your voice matters. Commenting in the comment process, as arduous and boring as it might seem, actually produces results, and this new Navigable Waters Protection Rule was an example of that.” — WLJ
