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EPA clarifies federal vs. state jurisdiction in definitive waters rule

Sources: Environmental Protection Agency; National Association of Home Builders, Washington, D.C.; CP staff

With the backdrop of the 2020 NAHB International Builders’ Show in Las Vegas, EPA Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works R.D. James announced the Navigable Waters Protection Rule. A clear definition for “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 minuscule and massive—attempted under the Obama administration.  

“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, restore common sense to the regulatory process, reduce project costs and maintain environmental protection of our nation’s waterways,” added outgoing NAHB Chairman Greg Ugalde (T&B Building Co., Torrington, Conn.). 

Navigable Waters Protection delivers on President Trump’s promise to finalize a revised definition for “waters of the United States,” spurring economic growth and compelling an EPA and Army Corps of Engineers first: Recognition of the difference between federally protected and state protected wetlands. The rule identifies four clear categories of waters and core tributary systems that are federally regulated under the Clean Water Act: Territorial seas and traditional navigable bodies, like the Atlantic Ocean and the Mississippi River; perennial and intermittent tributaries, such as College Creek, which flows to the James River near Williamsburg, Va.; certain lakes, ponds, and impoundments, such as Children’s Lake in Boiling Springs, Pa.; 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. More Navigable Waters Protection Rule information is posted at www.epa.gov/nwpr.