Last week, the U.S. Environmental Protection Agency released the Navigable Waters Protection Rule providing an updated definition of “Waters of the United States” (WOTUS). Under the Clean Water Act (CWA), the EPA has jurisdiction to protect navigable waterways from pollution. Over the past five decades, there have been multiple definitions and regulatory interpretations of what constitutes a “navigable waterway” under the CWA.
A ditch that is dry 364 days a year and becomes wet in a heavy rain storm is not, by any reasonable definition, a navigable waterway. Blatantly ignoring the commonsense meaning of “navigable” and subverting congressional intent, in 2015 the EPA declared that dry ditches, culverts and even puddles were indeed navigable waters under the CWA and thus subject to EPA control and enforcement. This confusion, uncertainty and government overreach resulted in many American landowners hiring teams of attorneys to tell them how they could legally use their own land without fear of EPA special agents knocking on their door or sending them a notice to appear in court. Further, the Obama era rule was subject to multiple legal challenges. In August of 2019, the U.S. District Court for the Southern District of Georgia ruled that the substance of the Obama era rule violated the Clean Water Act, finding its major provisions unlawful.
Under the new WOTUS definition, the EPA and Army Corps of Engineers are for the first time recognizing the difference between federally protected wetlands and state protected wetlands. The definition is simplified to four categories of jurisdictional 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 what are not “Waters of the United States,” which include: features that only contain water in direct response to rainfall; groundwater; many ditches, including most roadside and farm ditches; farm and stock watering ponds; waste treatment systems; and prior converted cropland.
This new rule provides much needed clarity to American farmers, landowners and businesses and ensures our precious waterways are protected. More information on this is available at https://www.epa.gov/nwpr.
Congressman Daniel Webster represents The Villages in the U.S. House of Representatives.
