By Sarah Gonzalez, Director of Communications and Digital Media
The Trump administration on Jan. 23 released its final rewrite of the Obama-era “waters of the United States” (WOTUS) rule, narrowing the federal government’s jurisdiction over streams and wetlands.
The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly announced the “Navigable Waters Protection Rule,” which narrows federal regulatory authority under the Clean Water Act. The rule “provides clarity, predictability and consistency while still protecting the environment with a common sense definition,” said White House officials during a Jan. 23 call with the NGFA and other stakeholders.
In its announcement, the administration outlined four categories of federally regulated waters: territorial seas and traditional navigable waters; perennial and intermittent tributaries to those waters; certain lakes, ponds, and impoundments; and wetlands adjacent to jurisdictional waters.
The final rule also details 12 categories of exclusions that are not considered “waters of the United States,” including ephemeral streams – which only contain water that accumulates in direct response to rainfall – as well as groundwater; many ditches; prior converted cropland; and waste treatment systems.
Under the Obama administration’s 2015 WOTUS rule, EPA’s jurisdiction was expanded over the nation’s bodies of water to include areas that are linked to traditional navigable waters by a so-called “significant nexus,” leading agricultural and business groups to criticize the agency for federal overreach. The Trump administration formally repealed the Obama-era rule in 2019 and announced it would replace it with the narrower definition of federal waters. Trump issued an executive order early in his presidency directing EPA to create a new rule using as a model the late Justice Antonin Scalia’s opinion in the 2006 Rapanos v. United States case, which resulted in a split decision by the Supreme Court. In his dissenting opinion, Scalia argued that the law should apply only to “navigable waters.”
Agriculture Secretary Sonny Perdue issued a statement praising Trump for delivering a new WOTUS. “The days are gone when the federal government can claim a small farm pond on private land as navigable waters,” Perdue said. “I thank President Trump and [EPA Administrator Andrew Wheeler] for having the backs of our farmers, ranchers and producers, and for continuing to roll back federal overreach.”
Meanwhile, several environmental groups, including the Natural Resources Defense Council and the National Wildlife Federation, criticized the administration’s final rule for rolling back pollution protections and promised to take legal action against it.