Jan 23, 2020
EPA replaces WOTUS with new Navigable Waters Protection Rule

On Jan. 23, the EPA and the Department of the Army finalized the Navigable Waters Protection rule to define “Waters of the United States” and thereby establish federal regulatory authority under the Clean Water Act.

For the first time, the agencies are streamlining the definition so that it includes four simple categories of jurisdictional waters, provides clear exclusions for many water features that traditionally have not been regulated, and defines terms in the regulatory text that have never been defined before. Congress, in the Clean Water Act, explicitly directed the Agencies to protect “navigable waters.” The Navigable Waters Protection Rule to define “Waters of the United States” regulates these waters and the core tributary systems that provide perennial or intermittent flow into them. Read the pre-publication version of the final Navigable Waters Protection Rule.

U.S. Secretary of Agriculture Sonny Perdue praised the EPA for defining the Waters of the United States (WOTUS) rule with the Navigable Waters Protection Rule:

“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 land-owners. The days are gone when the Federal Government can claim a small farm pond on private land as navigable waters,” Perdue said. “I thank President Trump and Administrator Wheeler for having the backs of our farmers, ranchers, and producers and for continuing to roll back Federal overreach. With reforms and deregulation, Americans once again have the freedom to innovate, create, and grow.”

“On Jan. 23, 2020, the EPA and the Department of the Army (Army) fulfilled yet another promise of President Trump by finalizing the Navigable Waters Protection Rule to define “waters of the United States” (WOTUS). For the first time, the agencies are streamlining the definition so that it includes four simple categories of jurisdictional waters, provides clear exclusions for many water features that traditionally have not been regulated, and defines terms in the regulatory text that have never been defined before. Congress, in the Clean Water Act, explicitly directed the Agencies to protect “navigable waters.” The Navigable Waters Protection Rule regulates these waters and the core tributary systems that provide perennial or intermittent flow into them. The final rule fulfills Executive Order 13788 and reflects legal precedent set by key Supreme Court cases as well as robust public outreach and engagement, including pre-proposal input and comments received on the proposed rule.

The Navigable Waters Protection Rule protects the environment while respecting states, localities, tribes, and private property owners. It clearly delineates where federal regulations apply and gives state and local authorities more flexibility to determine how best to manage waters within their borders. Assertions have been made that the new rule will reduce jurisdiction over thousands of stream miles and millions of acres of wetlands. These assertions are incorrect because they are based on data that is too inaccurate and speculative to be meaningful for regulatory purposes. The final rule along with state, local, and tribal regulations and programs provide a network of protective coverage for the nation’s water resources.”

To learn more about EPA’s WOTUS Rule, click here.

Statement from California Farm Bureau Federation

 “New federal rules to protect navigable waters promise to provide the certainty farmers and ranchers need to maintain agricultural production and enhance the land under their care,” the California Farm Bureau Federation said. CFBF President Jamie Johansson said the release of the Navigable Waters Protection Rule by the U.S. Environmental Protection Agency and Army Corps of Engineers encourages farmers and ranchers.

“You won’t find a stronger ally than farmers and ranchers when it comes to protecting land and natural resources, because they depend on those resources to produce food and farm products,” Johansson said. “The new rule promises clear guidelines to help farmers maintain and improve water quality while retaining the flexibility they need to manage their land.” 

The Navigable Waters Protection Rule will replace the 2015 Waters of the United States rule that would have given federal agencies extensive authority to regulate routine farming activities.

“The old WOTUS rule generated only confusion and litigation,” Johansson said. “We hope the new rule will lead to a more cooperative approach that sees farmers and ranchers as partners in protection of natural resources.”

The California Farm Bureau Federation works to protect family farms and ranches on behalf of nearly 34,000 members statewide and as part of a nationwide network of nearly 5.6 million Farm Bureau members.

Four regulated categories

Under the final “Step 2” rule, four clear categories of waters are federally regulated:

  • The territorial seas and traditional navigable waters,
  • Perennial and intermittent tributaries to those waters,
  • Certain lakes, ponds, and impoundments, and
  • Wetlands adjacent to jurisdictional waters

The final rule also details 12 categories of exclusions, features that are not “waters of the United States,” such as features that only contain water in direct response to rainfall (e.g., ephemeral features); groundwater; many ditches; prior converted cropland; and waste treatment systems.

The final rule clarifies key elements related to the scope of federal Clean Water Act jurisdiction, including:

  • Providing clarity and consistency by removing the proposed separate categories for jurisdictional ditches and impoundments.
  • Refining the proposed definition of “typical year,” which provides important regional and temporal flexibility and ensures jurisdiction is being accurately determined in times that are not too wet and not too dry.
  • Defining “adjacent wetlands” as wetlands that are meaningfully connected to other jurisdictional waters, for example, by directly abutting or having regular surface water communication with jurisdictional waters.

The Navigable Waters Protection Rule is the second step in a two-step process to review and revise the definition of “waters of the United States” consistent with the February 2017 Presidential Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States.’” This final rule will become effective 60 days after publication in the Federal Register and will replace the Step One Rule published in October, 2019.

This final action is informed by robust public outreach and engagement on the Navigable Waters Protection Rule, including pre-proposal engagement that generate more than 6,000 recommendations and approximately 620,000 comments received on the proposal. The final definition balances the input the final agencies received from a wide range of stakeholders.

The Navigable Waters Protection Rule Materials

Public Outreach Opportunities:

 

Public Webcast – A public webcast discussing the final Navigable Waters Protection Rule will be held on Feb, 13, 2020 – EPA and the Army will hold a public webcast to help explain the key elements of the final Navigable Waters Protection Rule on Thursday, February 13, 2020. Registration is available here.EXIT The webcast will be recorded and available online following presentation.

Pre-Proposal Outreach (concluded) and Consultation 

Public Meetings – The agencies held public meetings in Fall 2017 to hear from stakeholders their recommendations to revise the definition of “waters of the United States” under the Clean Water Act (CWA). More information about these meetings, including a complete schedule and the Federal Register notice, can be found at EPA’s Outreach Meetings webpage.

Written Recommendations – The agencies established an administrative docket to solicit pre-proposal recommendations for the Step 2 rulemaking to define “waters of the United States.” The docket closed on Nov. 28, 2017. Written recommendations can be found here in the docket.

Federalism and Tribal Consultation – In Spring 2017, EPA, in coordination with the Department of the Army, initiated formal consultations to solicit comments from state, local, and tribal governments regarding such a new definition. The agencies held a series of meetings with various groups as part of the consultation processes and have posted for public review each of the letters received as part of the consultation processes. ​Summaries of issues raised during tribal and federalism consultation are available in the docket.


 





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