Types of waterways falling under federal protection narrowed by EPA rule change

In a move designed to help business interests, the Trump administration on Thursday, Jan. 23, announced a new rule to reduce federal protections under the Clean Water Act.

The Navigable Waters Protection Rule sets a "new, clear definition for waters of the United States” that "protects the nation’s navigable waters from pollution and will result in economic growth across the country," said Andrew Wheeler, administrator of the U.S. Environmental Protection Agency.

Wheeler made the announcement Thursday at the National Association of Home Builders International Builders’ Show in Las Vegas.

The policy change, signed by heads of the Environmental Protection Agency and U.S. Army Corps of Engineers, narrows the types of waterways that qualify for federal protection under the half-century-old Clean Water Act.

While it retains federal protections for larger waters, the rule removes them for ephemeral and intermittent streams as well as isolated water bodies and wetlands. 

Wheeler told reporters that states were still free to step in with state protections of newly vulnerable waterways if they chose.

“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,” Wheeler said.

Farm groups welcomed the new clean water rule while environmental and conservation groups were dismayed.

Environmental and conservation groups estimate that as much as 50% of the nation's wetlands and millions of miles of streams would be unprotected, threatening public water supplies downstream and harming wildlife and habitat. The EPA did not offer an assessment of the rule's reach, saying there is no good gauge of temporary water bodies. 

The package of measures, promised by President Donald Trump for more than a year, comes four months after the repeal of the Waters of the U.S. rule (WOTUS), a far more protective series of regulations issued in 2015 by the Obama administration.

The new rule identifies four 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; certain lakes, ponds and impoundments; and wetlands adjacent to jurisdictional waters.

These four categories protect the nation’s navigable waters and the core tributary systems that flow into those waters, according to the EPA.

The rule also details what waters are not subject to federal control, including features that only contain water in direct response to rainfall; groundwater; many ditches, including most farm and roadside ditches; and prior converted cropland.

Scott Manley of Wisconsin Manufacturers & Commerce said the new rule gives the state clear authority to regulate, as opposed to the federal government.

"We believe the better model is when decisions are made by the government closest to the people impacted by the rules," said Manley, executive vice president of government relations.

Farmers and ranchers support the new rule since they care about clean water and preserving the land, which are essential to producing healthy food and ensuring future generations can do the same. 

“It provides clarity and certainty, allowing farmers to understand water regulations without having to hire teams of consultants and lawyers," said American Farm Bureau Federation President Zippy Duvall. "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.”  

National Farmers Union (NFU) has long supported greater clarification of WOTUS and was encouraged by the administration’s efforts do so. 

“Family farmers and ranchers have been confused by ambiguous water regulations for many years," said NFU President Roger Johnson. "Now that we have a more precise definition of WOTUS, we hope that farmers will better understand which kinds of water are subject to federal authority and which are not.

“But farmers don’t just need greater clarity — they also need access to clean, safe water for their families, their farms, and their communities," Johnson continued. "These needs are not mutually exclusive; when regulating natural resources, EPA and the Army Corps of Engineers must balance certainty for farmers, ranchers, and property owners with protections for our water supply."

American Dairy Coalition CEO Laurie Fischer, expressed support of the new rule.

“Ultimately, the revision of this rule empowers the states to manage their waters in ways that best safeguard natural resources and local economies," said Fischer. "We’re eager to see this step moving forward, increasing common sense factors and alleviating the continuous confusion and legal ramifications the previous version has inflicted.”

American soybean farmers were pleased to see the new rule replace the cumbersome, confusing 2015 WOTUS rule.

“New regulation will better provide certainty and clear direction for our farmers,” said Bill Gordon, soy grower from Worthington, Minn., and American Soybean Association (ASA) president. “We have long rallied for a replacement rule that protects our waterways while still offering a workable solution for farmers and that does not impose undue burden on agriculture.”

The National Pork Producers Council (NPPC) said the new rule is fully consistent with the Clean Water Act and recent Supreme Court decisions. The EPA's actions give farmers greater certainty, working with, not against, farmers, while also protecting water quality and the environment.  

 NPPC President David Herring, a pork producer from Lillington, N.C., said, "The previous WOTUS rule was a dramatic government overreach and an unprecedented expansion of federal authority over private lands. Today's action balances the role of federal, state and local authorities, protects property rights and provides clarity for farmers like me, while providing regulatory certainty to our farmers and businesses."

Opponents of the rule fear the newly unprotected waters will be polluted or filled, degrading water quality and damaging fish and wildlife habitat.

The impact of the new rule will hit states differently.

Since the Clean Water Act was passed in 1972, some states have enacted stiffer rules for their water bodies than federal law requires. 

A Trout Unlimited study estimated Wisconsin has 113,400 miles of ephemeral streams that would lose federal protections under the new rule.

Still, Wisconsin waters will be better protected than many other states.

"The Trump administration's decision shows the importance of having strong state policies, and we're fortunate in Wisconsin that our laws still largely recognize the value of geographically isolated wetlands and ephemeral streams," said Erin O'Brien of Wisconsin Wetlands Association.

O'Brien said the new rule will be incredibly disruptive and destructive in states that rely on federal policies to protect local waters.

Furthermore, there are implications for neighboring states.

"Water doesn't respect state lines," O'Brien said. "Neither do fish and wildlife, and this is important up and down our river corridors and flyways."

The final rule is scheduled to be published in the Federal Register in the next few days and becomes effective 60 days later.

Implementation could be blocked by litigation. Groups opposed to the new rule, including the National Wildlife Federation, pledged a legal challenge.

Paul Smith of the Milwaukee Journal Sentinel and Ellen Knickmeyer of the Associated Press contributed to this article.

Carol Spaeth-Bauer at 262-875-9490 or carol.spaeth-bauer@jrn.com. Follow her on Twitter at cspaethbauer or Facebook at https://www.facebook.com/carol.spaethbauer.