The Trump administration has released a replacement of the controversial 2015 “Waters of the U.S.” rule with definitions to clarify federal jurisdiction under the Clean Water Act and consider rural landowners in ways that will reduce regulatory delay and costs.
The new “Navigable Waters Protection Rule”—developed by the Environmental Protection Agency and the U.S. Army Corps of Engineers—specifies four types of water bodies that fall under the jurisdiction of the federal Clean Water Act. Importantly, the rule also provides exclusions, including one that preserves the long-standing exemption for waste treatment systems.
“The new rule is a sensible regulation that provides regulatory clarity, protects the environment and recognizes the important role of states in managing the nation’s water resources,” NRECA CEO Jim Matheson said Jan. 23. “The 2015 WOTUS rule would have increased regulatory delay and costs for electric co-ops to maintain and build critical infrastructure. The new rule will facilitate this important work as co-ops strive to meet growing energy needs.”
The rule confirms federal jurisdiction over permanent waterways that always or usually contain water: territorial seas and traditional navigable waters; perennial and intermittent tributaries; certain lakes, ponds and impoundments; and wetlands that are adjacent to jurisdictional waters, EPA said. Other waters remain under state protection.
Among the exclusions are groundwater; short-lived features, such as streams and gullies created by rain and runoff; and artificial lakes and ponds, including water storage reservoirs and irrigation, stock watering, and log cleaning ponds that do not connect to a jurisdictional water.
Ditches are excluded unless authorities can prove that they were built or serve as tributaries or are adjacent to wetlands. Prior converted cropland only loses its exclusion if it is abandoned and has reverted to wetlands.
“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, an assistant secretary of the Army. “Our rule takes a common-sense approach to implementation to eliminate that confusion.”
NRECA pushed for replacement to the 2015 WOTUS rule and called on EPA and the Army Corps of Engineers to provide clearer regulations that protect natural resources while allowing co-ops to build and maintain infrastructure to provide members with reliable and affordable electricity.
The 2015 rule would have expanded federal jurisdiction over eight water categories and increased oversight by the Army Corps based on historical data of waterbodies, such as old maps and aerial photographs, rather than current conditions.
Courts stayed the rule in 28 states and remanded it to the EPA and the Army Corps to correct its multiple conflicts with the Clean Water Act and Administrative Procedures Act.