EPA announces WOTUS replacement

Published on Feb. 1, 2020

The Environmental Protection Agency (EPA) recently announced the replacement for the recently repealed Waters of the U.S. (WOTUS). 

            On Jan. 23, EPA and the Department of the Army finalized the Navigable Waters Protection Rule to define “waters of the United States.” 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 final rule will become effective 60 days after publication in the Federal Register. Once effective, it replaces the rule published on Oct. 22, 2019. 

Replacing old rules 

            National Cattlemen’s Beef Association Chief Environmental Council Scott Yager explains this new rule is a huge improvement over Obama’s 2015 WOTUS rule. 

            “Obama’s rule was repealed in September 2019 and the recent actions finalized by EPA administrator Andrew Wheeler and the Army Corps of Engineers creates the replacement,” says Yager. “Many people though getting rid of WOTUS was the final step, but in reality, without a new definition of what classified as federal waters, the government could rule without any boundary to adhere to.” 

            He continues, “The purpose of this rule is two-fold. Number one, it is a more constrained rule and pulls back some of the federal jurisdiction from the 2015 rule. Number two, it provides more clarity to private land owners who may have federally jurisdicted waters on their land.”

            “This is a huge change and a big pull back on federal over reach,” Yager says. “It also spells out very clear exclusions for agriculture features such as stock ponds and irrigation ditches.” 

            “This is a really positive rule change for rural America and agriculturalists,” says Yager.

Industry support 

            NCBA President Jennifer Houston supports the rule in its entirety as it directly effects many cattle producers
            “This is the last regulatory step in a long-fought battle to repeal the 2015. WOTUS rule and replace it with common-sense regulation,” she says. “The 2015 WOTUS rule was an illegal effort to assert control over private property – and we fought to have it repealed – but it also needs to be replaced and recent action is the last step in that process.”
            “President Trump, EPA Administrator Wheeler and Assistant Secretary of the Army R.D. James deserve a lot of credit for listening to cattle producers and for working with us to get us to this point,” she says. “We look forward to working with EPA and the Army Corps of Engineers to successfully implement this new rule in the years to come.”
            She concludes, “NCBA relentlessly fought WOTUS on Capitol Hill, at the agencies and in the courts. Today, we can rest a little easier knowing that some power has been put back in the hands of landowners.”

            American Farm Bureau President Zippy Duvall says, “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. That’s why we support the new clean water rule. It provides clarity and certainty, allowing farmers to understand water regulations without having to hire teams of consultants and lawyers. We appreciate the commitment of the agencies involved and this administration to crafting a new regulation that achieves important regulatory oversight while allowing farmers to farm. Clean water, clear rules.”      

            The Waters Advocacy Coalition (WAC) teamed up with many agriculture groups in support of the repeal of 2015 WOTUS and the introduction of new rules. 

            “This new clean water rule represents small changes with a big positive impact that is better for the economy and protects the environment,” says WAC. “It provides the regulatory clarity and certainty small businesses need to make confident decisions to produce goods and services, create jobs, build infrastructure, grow our food, and strengthen local economies.”

            WAC continues, “This new rule does not reduce or remove environmental protections of any waters—it simply brings clarity to which level of government oversees which body of water under the federal-state partnership established by the Clean Water Act.”

            “WAC is a broad cross-section of farmers, builders, manufacturers and other small businesses committed to protecting the environment and the communities in which we live and work. This new rule accomplishes that goal by bringing clarity to the lines of authority under the federal-state partnership established by the Clean Water Act,” they conclude.

            Callie Hanson is the managing editor of the Wyoming Livestock Roundup. Send comments on this article to roundup@wylr.net.