What the new Navigable Waters Protection Rule means

Waters of the United States (WOTUS) defined.

A new, clear definition for “waters of the United States” (WOTUS) is now in place, after President Trump’s finalized, revised definition of WOTUS, which protects the nation’s navigable waters from pollution and promotes economic growth across the country.

U.S. Secretary of Agriculture Sonny Perdue also comments on the Navigable Waters Protection Rule in a statement released today. “President Trump is restoring the rule of law and empowering Americans by removing undue burdens and strangling regulations from the backs of our productive farmers, ranchers, and rural land-owners. The days are gone when the Federal Government can claim a small farm pond on private land as navigable waters,” Secretary Perdue says. “I thank President Trump and Administrator Wheeler for having the backs of our farmers, ranchers, and producers and for continuing to roll back Federal overreach. With reforms and deregulation, Americans once again have the freedom to innovate, create, and grow.”

Also commenting on the new rule is National Corn Growers Association President Kevin Ross. “Farmers are committed to protecting the environment and implementing on-farm soil health practices like planting cover crops, reducing tillage, and more carefully managing crop residue. This new rule gives the flexibility and clarity needed to implement stewardship practices without the threat of government action. The final WOTUS rule will protect our nation’s water and be implemented without confusion, which is welcome news for farmers. NCGA appreciates the work done by the Trump administration to provide this regulatory certainty,” says Ross. 

For the first time, the Environmental Protection Agency (EPA) and the Army recognize the difference between federally protected wetlands and state-protected wetlands. It adheres to the statutory limits of the agencies’ authority. It also ensures that America’s water protections – among the best in the world – remain strong, while giving states and tribes the certainty to manage their waters in ways that best protect their natural resources and local economies.

The revised definition identifies four clear categories of waters that are federally regulated under the Clean Water Act:

  1. territorial seas and traditional navigable waters
  2. perennial and intermittent tributaries
  3. certain lakes, ponds, and impoundments
  4. wetlands that are adjacent to jurisdictional waters

These four categories protect the nation’s navigable waters and the core tributary systems that flow into those waters. For example, the new rule helps ensure that territorial seas and traditional navigable waters, like the Atlantic Ocean and the Mississippi River; perennial and intermittent tributaries, such as College Creek, which flows to the James River near Williamsburg, Virginia; certain lakes, ponds, and impoundments, such as Children’s Lake in Boiling Springs, Pennsylvania; and wetlands that are adjacent to jurisdictional waters are protected.

This final action also details which 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; prior converted cropland; farm and stock watering ponds; and waste treatment systems.

“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 EPA Administrator Andrew 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 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.”

“Having farmed American land myself for decades, I have personally experienced the confusion regarding implementation of the scope of the Clean Water Act,” said R.D. James, assistant secretary of the Army for Civil Works. “Our rule takes a common-sense approach to implementation to eliminate that confusion. This rule also eliminates federal overreach and strikes the proper balance between federal protection of our nation’s waters and state autonomy over their aquatic resources. This will ensure that land use decisions are not improperly constrained, which will enable our farmers to continue feeding our nation and the world, and our businesses to continue thriving.” 

The final definition achieves the proper relationship between the federal government and states in managing land and water resources. The agencies’ Navigable Waters Protection Rule respects the primary role of states and tribes in managing their own land and water resources. All states have their own protections for waters within their borders and many already regulate more broadly than the federal government. This action gives states and tribes more flexibility in determining how best to manage their land and water resources while protecting the nation’s navigable waters as intended by Congress when it enacted the Clean Water Act.

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