EPA, Army finalize repeal of controversial ‘Waters of the U.S.’ rules

OPINION – PUBLISHED IN DES MOINES REGISTER

Andrew Wheeler and R.D. James, Guest columnists. Published 6:00 a.m. CT Sept. 12, 2019

Today, EPA and the Department of the Army will finalize a rule to repeal the previous administration’s overreach in the federal regulation of waters and wetlands. This action officially ends an egregious power grab and sets the stage for a new rule that will provide much-needed regulatory certainty for farmers, home builders, and property owners nationwide.

The Clean Water Act gives the federal government jurisdiction over “navigable waters,” which are defined as “waters of the United States” (WOTUS). Over time, the scope of jurisdiction has expanded from truly navigable waters and their major tributaries to eventually capture isolated ponds and channels that flow only after it rains. As the definition expanded, so too has Washington’s power over private property and the states’ traditional authority to regulate their land and water resources.

In 2015, the Obama administration put forward a WOTUS definition that expanded Washington’s influence over the landscape, including categorical jurisdiction over ephemeral tributaries and potential jurisdiction over isolated wetlands and ponds three-quarters of a mile from a remote tributary. The definition was so far-reaching that they needed to clarify in regulatory text that puddles were excluded. The Iowa Farm Bureau, for example, estimated that waters and wetlands within 97% of the land mass in Iowa could fall under federal purview according to the 2015 definition.

The 2015 rule meant that more businesses and landowners across the U.S. would need to obtain a federal permit to exercise control over their own property, a process that can cost tens of thousands of dollars and take months or even years to complete.

Many Americans balked at this idea, reflected by the fact that the 2015 rule has been mired in litigation since it was signed. Thirty-one states and 53 non-state parties, including groups representing farming, mining, forestry, and other interests, filed complaints and petitions for review in multiple federal district and appellate courts. The rule was enjoined in much of the country as courts began to recognize the potential regulatory overreach. In fact, the 2015 rule is currently in effect only in 22 states, the District of Columbia, and the U.S. territories, while the previous regulations, issued in the 1980s, are in effect in the balance of the country. And just last month, the U.S. District Court for the Southern District of Georgia found the 2015 rule unlawfully extended the agencies’ authority beyond the limits of the Clean Water Act and violated federal Administrative Procedure Act requirements.