Trump administration’s WOTUS definition ends decades of confusion, federal overreach

The U.S. Environmental Protection Agency and the Department of the Army fulfilled yet another one of President Donald Trump’s promises by issuing the Navigable Waters Protection Rule on Thursday. The rule establishes a new definition for Waters of the United States, or WOTUS, and clarifies the limits of federal control under the Clean Water Act. After 45 years of constant litigation and uncertainty, the Trump administration’s new rule brings regulatory certainty to American farmers, landowners and businesses, and should significantly curtail the need to hire teams of attorneys to tell them how to use their own land.

In 2015, the EPA under President Barack Obama put forward a rule with a WOTUS definition that expanded Washington’s reach into privately owned lands — a move that left Americans, including our nation’s farmers, confused and uncertain about where federal jurisdiction ended and where the states’ authority began.

For example, the Pennsylvania Farm Bureau estimated that waters within 99% of the state’s land area could have fallen under the purview of the 2015 rule. In Missouri, it was estimated that waters and wetlands within 95% of the state’s land area could have come under the purview of the federal government. And in Iowa, the Iowa Farm Bureau estimated that waters and wetlands within 97% of the state could have fallen under the 2015 definition. The North Dakota Department of Agriculture conducted a similar assessment, and found that waters in approximately 80% of the state could have fallen under federal jurisdiction. Simply put, the 2015 rule was a federal land grab, and the EPA and the Army repealed it in October 2019.

The new rule protects the environment and our waterways while respecting the states and private property owners. States have their own protections for waters within their borders, and many already regulate more broadly than the federal government. The Navigable Waters Protection Rule recognizes this relationship and strikes the proper balance between Washington, D.C., and the states. It clearly details which waters are subject to federal control under the Clean Water Act and — importantly — which waters fall solely under the states’ jurisdiction.

To do so, the EPA and the Army have established four clear categories of waters that are federally regulated under the Clean Water Act: the territorial seas and traditional navigable waters, such as the Atlantic Ocean and the Mississippi River; perennial and intermittent tributaries, such as College Creek, which flows to the James River in Williamsburg, Virginia; certain lakes, ponds and impoundments, such as Children’s Lake in Boiling Springs, Pennsylvania; and wetlands that are adjacent to jurisdictional waters. These four categories protect the nation’s navigable waters and the core tributary systems that flow into those waters.

Now, thanks to our new rule, our nation’s farmers, ranchers, developers, manufacturers and other landowners can finally refocus on providing the food, shelter and other commodities that Americans rely on every day, instead of spending tens of thousands of dollars on attorneys and consultants to determine whether waters on their own land fall under the control of the federal government. When it comes to federal regulation, we owe it to the American public to finalize rules that are consistent with congressional intent and the law while at the same time promoting clarity and certainty for the regulated community and protecting the environment.

Our new rule follows the law and embodies the intent of Congress to regulate the nation’s navigable waters. It outlines an approach that, together with existing state and tribal regulations and programs, protects our nation’s water resources in accordance with the Clean Water Act. It provides certainty and predictability that will save Americans time and money while accelerating infrastructure projects and economic development. It recognizes that regulation of land use is a quintessential state and local power. And, importantly, the Trump administration’s WOTUS definition will be easier to understand and implement in comparison to previous rules.

After 50 years of environmental protection, we know that making progress requires strong cooperation and coordination between Washington, D.C., and the states. Many states already have a robust network of regulations that protect their state waterways. Our new rule, together with these state efforts and other federal programs, such the Great Lakes program, will continue to ensure that America’s water protections — among the best in the world — remain strong, while giving states and tribes the flexibility and certainty to manage their waters in ways that best protect their natural resources and local economies. We look forward to continuing our close cooperation with our state and tribal partners as we make progress together for a stronger future.

Andrew Wheeler is administrator of the U.S. Environmental Protection Agency. He co-authored this with R.D. James, assistant secretary of the Army for civil works.

This story was originally published January 27, 2020 at 5:00 AM with the headline "Trump administration’s WOTUS definition ends decades of confusion, federal overreach."