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Definitive waters rule rises in wake of Obama EPA ambiguity

With the backdrop of the 2020 National Association of Home Builders International Builders’ Show in Las Vegas, Environmental Protection Agency Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works R.D. James announced the Navigable Waters Protection Rule. Clearly defining “waters of the United States,” it lays to rest one of the most contentious EPA actions—a 2015 Clean Water Act reinterpretation expanding federal authority over bodies of water small and large—attempted under the Obama administration. The new definition will see fewer residential and commercial building development projects subject to federal Clean Water Act (CWA) permits.

“EPA and the Army are providing much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects,” said Administrator Wheeler. “After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and resources.”

“By excluding most man-made ditches and isolated ponds on private property from federal jurisdiction, the new rule will correct the vast overreach of prior rules, reduce project costs and maintain environmental protection of our nation’s waterways,” added outgoing NAHB Chairman Greg Ugalde (T&B Building Co., Torrington, Conn.).

“Having farmed American land myself for decades, I have personally experienced the confusion regarding implementation of the scope of the Clean Water Act,” affirmed Assistant Corps Secretary James. “Our rule takes a common-sense approach to implementation to eliminate that confusion.

The Navigable Waters Protection Rule delivers on President Trump’s promise to finalize a revised “waters of the United States” definition, spurring economic growth and compelling an EPA and Army Corps of Engineers first: Recognition of the difference between federally and state protected wetlands. The rule identifies four water and core tributary system categories that are regulated under the CWA: Territorial seas and traditional navigable bodies; perennial and intermittent tributaries; certain lakes, ponds, and impoundments; and, wetlands adjacent to jurisdictional waters. Features not subject to federal control include those that only contain water in direct response to rainfall; groundwater; many farm and roadside ditches; prior converted cropland; farm and stock watering ponds; and, waste treatment systems. The final definition respects the primary role of states and tribes in managing their own land and water resources, EPA and Corps officials affirm.

The agencies cite robust public outreach attending the Navigable Waters Protection Rule, including pre-proposal engagement that generated more than 6,000 recommendations and 600,000-plus comments. Leading into the public comment period on proposed EPA and Corps action, many parties expressed concern over the 2015 Waters of the U.S. rule, noting its inclusion of ditches, ponds and other temporary features well beyond CWA-bound “navigable waters.” Several legal challenges halted the 2015 rule’s nationwide implementation, according to the National Stone, Sand & Gravel Association.

Most recently, an August 2019 opinion from U.S. District Court in Georgia found that the substance of rule violated the CWA. EPA and the Corps repealed the Obama EPA definition the following month and reinstated terms of a 1986 rule, itself criticized for ambiguity and compliance difficulty.