Waters Advocacy Coalition Applauds New Clean Water Rule

WASHINGTON – January 23, 2020 – The Waters Advocacy Coalition, a broad cross-section of small businesses, farmers, ranchers and builders, today applauds the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps of Engineers) for replacing the 2015 Waters of the United States (WOTUS) regulation with a new Clean Water rule that brings much-needed clarity and certainty to enforcement of the Clean Water Act.

The new rule issued by the EPA and Corps of Engineers brings clarity to which level of government – federal or state – oversees dry land that is sometimes wet. The new rule does not change who oversees permanent waterways, such as lakes, rivers, streams and other bodies that always or usually contain water. It does make clear that usually dry areas should not be considered federal waters.

The following is a joint statement by members of the Waters Advocacy Coalition:

“Today’s new clean water rule represents small changes with a big positive impact that is better for the economy and protects the environment. It provides the regulatory clarity and certainty small businesses need to make confident decisions to produce goods and services, create jobs, build infrastructure, grow our food, and strengthen local economies.

“This new rule does not reduce or remove environmental protections of any waters—it simply brings clarity to which level of government oversees which body of water under the federal-state partnership established by the Clean Water Act.

“The Waters Advocacy Coalition is a broad cross-section of farmers, builders, manufacturers and other small businesses committed to protecting the environment and the communities in which we live and work. This new rule accomplishes that goal by bringing clarity to the lines of authority under the federal-state partnership established by the Clean Water Act.”

  • Zippy Duvall, president of the American Farm Bureau Federation, said, “Farmers and ranchers care about clean water and preserving the land, which are essential to producing healthy food and fiber and ensuring future generations can do the same. That’s why we support the new clean water rule. It provides clarity and certainty, allowing farmers to understand water regulations without having to hire teams of consultants and lawyers. 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.”
  • Jay Timmons, president and CEO of the National Association of Manufacturers said, “Manufacturers were proud to wage the court fights that invalidated the overreaching and unreasonable past rule. Today’s announcement bolsters manufacturers’ confidence and empowers us to invest in our communities and expand our work in America, while also continuing our leadership for responsible environmental stewardship. This is the smart, balanced regulation America deserves. And make no mistake: manufacturers will keep our promise to deliver cleaner water for future generations, in our operations and through the innovations we pioneer.”
  • Marty Durbin, president of the U.S. Chamber’s Global Energy Institute, said, “Today’s announcement brings us a step closer to clean water regulations that are clear and consistent. The new rule distinguishes between waters that are regulated by the federal government and those that are regulated by the states, making it easier for businesses, states and local governments to understand their obligations. We look forward to continued progress on water quality under this sensible regulation and applaud the Administration for their leadership on this important issue.”
  • Greg Ugalde, chairman of the National Association of Home Builders and a home builder and developer from Torrington, Conn., said, “NAHB commends the Trump administration for finalizing a new definition for its waters of the U.S. rule that will boost housing affordability by clarifying the limits of federal jurisdiction over certain ‘waterbodies.’ 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.”
  • Stephen E. Sandherr, chief executive officer of the Associated General Contractors of America, said, “The new clean water rule employs sound administrative policy to protect our vital waterways while providing permitting clarity for infrastructure and development projects to proceed in a timely manner. We expect this rule will put an end to the regulatory uncertainty and bureaucratic confusion that threatened to stifle countless essential projects to improve our infrastructure and the environment across the country.”
  • National Mining Association President and CEO Rich Nolan said, “This updated rule provides the certainty and clarity that Clean Water Act (CWA) implementation has lacked for decades. It will now allow American businesses, including the nation’s mining industry, to make confident decisions that will create jobs, strengthen local communities and provide the energy and materials that are the foundation of our economy. Our industry and so many others welcome the rule’s clear, commonsense delineations between state and federal waterways. The 2015 rule, which unlawfully expanded the scope of federal CWA jurisdiction, was a shining example of the last administration’s propensity for federal overreach.”

Background:

Under the Clean Water Act (CWA), the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) have jurisdiction to regulate “navigable” waters. “Navigable” waters are defined in the statute as “the waters of the United States” (WOTUS).  Any waters not regulated by the federal government are regulated by the states and local municipalities.  On multiple occasions, the Supreme Court has said the federal government has a broad but not unlimited role in the use of public and private land. However, in June 2015, EPA and the Corps finalized a controversial rule that drastically increased their regulatory reach beyond those limits by expanding the definition of WOTUS to include nearly all waters nationwide—and many land areas that only temporarily hold water. In other words, the agencies reinterpreted the law to expand their own jurisdiction beyond what Congress authorized at the expense of the states.

Under the 2015 WOTUS rule, EPA and the Army Corps would have unprecedented permitting and enforcement authority over land use decisions that Congress did not authorize. Farmers with ditches or low spots along their fields must apply for CWA permits for common farming practices, such as changing from one crop to another. It forced construction companies to rethink conventional building practices near any wet area, and property owners faced heavy fines for using their own ponds and creeks if they do not follow strict federal laws. Critical infrastructure projects could be slowed as a result of onerous permitting requirements.

The 2015 WOTUS rule also unlawfully infringed on the role of states in protecting local waterways and granted the federal government nearly unlimited authority to regulate any low spot where rainwater collects. This ambiguous rule also resulted in substantial regulatory uncertainty and legal risk for a broad cross-section of the nation’s economy. The 2015 rule was quickly blocked by the 6th Circuit Court of Appeals based on its legal flaws and the potential for it to create significant economic and regulatory burdens.

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THE MERCATUS CENTER: Public Interest Comment: Definition of “Waters of the United States” Under the Clean Water Act

By Ryan Yonk, Ken Sim, and Josh DeFriez

The Environmental Protection Agency and Army Corps of Engineers have proposed a rule changing the definition of “waters of the United States” under the Clean Water Act (CWA). Under current law, whether or not a water body qualifies as “waters of the United States” is determined case-by-case. The proposed rule seeks to add clarity to this process by providing a more robust definition for “waters of the United States.”

The rule would lead to expansion of the agencies’ jurisdiction, and it would impose higher costs on those who comply with the CWA. The proposed rule fails to demonstrate that its benefits outweigh its costs. It will likely fail to improve environmental outcomes and lead to uncertainty about what is allowed under the CWA.

Continue reading at The Mercatus Center…