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(Des Monies Register) EPA, Army finalize repeal of controversial 'Waters of the U.S.' rule

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EPA Administrator Andrew Wheeler
Assistant Secretary of the Army for Civil Works R.D. James
Des Moines Register
September 12, 2019

Today, EPA and the Department of the Army will finalize a rule to repeal the previous administration’s overreach in the federal regulation of waters and wetlands. This action officially ends an egregious power grab and sets the stage for a new rule that will provide much-needed regulatory certainty for farmers, home builders, and property owners nationwide.

The Clean Water Act gives the federal government jurisdiction over “navigable waters,” which are defined as “waters of the United States” (WOTUS). Over time, the scope of jurisdiction has expanded from truly navigable waters and their major tributaries to eventually capture isolated ponds and channels that flow only after it rains. As the definition expanded, so too has Washington’s power over private property and the states’ traditional authority to regulate their land and water resources.

In 2015, the Obama administration put forward a WOTUS definition that expanded Washington’s influence over the landscape, including categorical jurisdiction over ephemeral tributaries and potential jurisdiction over isolated wetlands and ponds three-quarters of a mile from a remote tributary. The definition was so far-reaching that they needed to clarify in regulatory text that puddles were excluded. The Iowa Farm Bureau, for example, estimated that waters and wetlands within 97% of the land mass in Iowa could fall under federal purview according to the 2015 definition.

The 2015 rule meant that more businesses and landowners across the U.S. would need to obtain a federal permit to exercise control over their own property, a process that can cost tens of thousands of dollars and take months or even years to complete.

Many Americans balked at this idea, reflected by the fact that the 2015 rule has been mired in litigation since it was signed. Thirty-one states and 53 non-state parties, including groups representing farming, mining, forestry, and other interests, filed complaints and petitions for review in multiple federal district and appellate courts. The rule was enjoined in much of the country as courts began to recognize the potential regulatory overreach. In fact, the 2015 rule is currently in effect only in 22 states, the District of Columbia, and the U.S. territories, while the previous regulations, issued in the 1980s, are in effect in the balance of the country. And just last month, the U.S. District Court for the Southern District of Georgia found the 2015 rule unlawfully extended the agencies’ authority beyond the limits of the Clean Water Act and violated federal Administrative Procedure Act requirements.

This patchwork of two different Clean Water Act jurisdictional regulations is unsustainable. There should be one standard that can advance economic development and environmental protection.

Shortly after he took office, President Trump issued an executive order directing EPA and the Army to review and replace, as appropriate, the 2015 definition with one that restores the rule of law and the role of states and landowners in managing their land and water resources while at the same time promoting economic growth.

Today’s action is “Step 1” of our response to the president’s executive order. Step 1 repeals the 2015 rule and recodifies the longstanding and familiar regulatory text that existed previously. It also sets the stage for “Step 2” – our new proposed “waters of the United States” definition.

In December 2018, EPA and the Army issued a new proposed definition that would clearly define where federal jurisdiction begins and ends in accordance with the Clean Water Act and Supreme Court precedent. In the proposal, we are clearly defining the difference between federally regulated waterways and those waters left solely to state authority.

It’s important to remember that many states already have their own protections for waters within their borders, regardless of whether those waters are federally regulated or not. Together, and as intended by Congress when it enacted the Clean Water Act in 1972, our proposed definition and existing state programs would provide a strong network of coverage for the nation’s water resources. This network is complemented by dozens of federal and state programs designed to protect and restore the water we drink, the air we breathe, and the land we use.

The proposal’s new, more precise definition would mean that farmers, land owners, and businesses will spend less time and money determining whether they need a federal permit and more time upgrading aging infrastructure, building homes, creating jobs, and growing crops to feed our families. We intend to finalize a new definition this winter so that spring comes with renewed hope for sensible federal regulation and partnership with our regulated community.

Today’s action fulfills a key promise of the president and lays the groundwork for his ultimate objective – a new WOTUS definition that provides hardworking Americans the regulatory certainty they need to invest in, develop, and build new projects that improve lives and the environment.

Andrew Wheeler is the administrator of the Environmental Protection Agency.

R.D. James is the assistant secretary of the Army for Civil Works.

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