To the delight of development stakeholders and the Alaska congressional delegation, federal authorities in charge of regulating the nation’s waters released their latest proposal to define which ones they have jurisdiction over on Dec. 11
The Environmental Protection Agency and the U.S. Army Corps of Engineers are jointly planning to scale back the waters over which they can claim jurisdictional authority.
Acting EPA Administrator Andrew Wheeler and Assistant Secretary of the Army R.D. James signed the proposed rule Dec. 11; the EPA is subsequently expected to submit it for publication in the Federal Register, which will trigger a 60-day public comment period, according to a pre-publication version of the rule.
The move is the final step in the Trump administration’s nearly two-year effort to replace an Obama-era version of the “waters of the U.S.” rule, oft referred to as WOTUS, finalized in 2015.
The Corps of Engineers adjudicates applications for development permits in navigable waterways across the country on behalf of the EPA. The EPA has the final say over regulating development in and around navigable waters through is Clean Water Act authority.
“This proposed rule is intended to increase (Clean Water Act) program predictability and consistency by increasing clarity as to the scope of ‘waters of the United States’ federally regulated under the Act. Today’s proposed definition is also intended to clearly implement the overall objective of the CWA to restore and maintain the quality of the nation’s waters while respecting State and tribal authority over their own land and water resources,” an Army-EPA summary of the rule states.
In February 2017 President Donald Trump issued an executive order titled, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” That order led to a lengthy public process to repeal the 2015 rule, which concluded earlier this year.
On Oct. 9, 2015, the 6th U.S. Circuit Court of Appeals in Ohio stayed implementation nationwide of the Clean Water Rule in a 2-1 decision.
Judges Richard Allen Griffin and David McKeague found enough evidence to suspend it based on key parameters in the final rule that are not substantiated by adequate scientific conclusions and that the same parameters may not have been added to the Clean Water Rule in accordance with public comment regulations.
Specifically, the new WOTUS rule covers traditional, large navigable waters and their tributaries that contribute year-round or intermittent flow and wetlands adjacent to other jurisdictional waters.
“Adjacent wetlands” are defined as wetland areas that abut or have a surface water connection to other jurisdictional waters in a normal year, according to the agencies.
“Wetlands physically separated from other waters of the United States by upland or by dikes, barriers, or similar structures and also lacking a direct hydrologic surface connection to such waters are not adjacent under today’s proposal,” according to the draft rule issued Dec. 11.
Development in waters that fall under the Clean Water Act typically require some sort of mitigation or offset to the impacts of the activity, which development proponents often lament as being very costly.
The members of Alaska’s congressional delegation welcomed the announcement in statements from their offices.
Sen. Dan Sullivan called the previous version of WOTUS “confusing and burdensome federal overreach.”
“If a landowner or farmer has to hire a lawyer for months of work against an impenetrable and glacial bureaucracy — at the cost of thousands of dollars — just to understand whether they can fill a ditch or build a structure, it doesn’t take a genius to figure out that doesn’t work, especially in Alaska,” Sullivan said. “The EPA’s proposal offers a path to a more reasonable, statutory-based interpretation of the Clean Water Act. I hope we can continue this progress and finalize a rule that clearly allocates state and federal authority to adequately protect our watersheds and resources, without unnecessarily burdening Alaskans and our economy.”
Sullivan serves on the Senate Environment and Public Works Committee.
Opponents argued the old rule placed many manmade water bodies, such as irrigation ditches, under the purview of the Clean Water Act.
Sen. Lisa Murkowski, chair of the Energy and Natural Resources Committee, also said the new rule should restore balance in the state and federal relationship over water and “help end years of concern, frustration, and uncertainty over a costly regulation that would have halted construction projects and other economic opportunities.”
Under the previous rule promulgated by the Obama administration, waters adjacent to traditionally jurisdictional waters that are within the 100-year floodplain to a maximum of 1,500 feet were subject to the Clean Water Act and thus were jurisdictional waters under federal authority. Additionally, isolated water bodies with a “significant nexus” to navigable waters fell under the Clean Water Act in the 2015 rule.
The State of Alaska initially sued the EPA over the 2015 rule along with 12 other, mostly western states.
Obama administration officials argued the previous rule was meant to formalize and clarify the jurisdiction the agencies had operated under for years.
Conservation groups contend the prior WOTUS rule was based on science that proves the importance intermittent streams and subsurface water connections in maintaining clean water and healthy aquatic ecosystems.
“This (Dec. 11) proposal is fundamentally flawed for one simple reason: It focuses on the wrong criteria — continuous flow of water — rather than protecting water quality in our rivers, lakes, and drinking water reservoirs,” Izaak Walton League of America Executive Director Scott Kovarovics said in a formal statement. “This misguided approach is completely unsupported by science and common sense and it not only jeopardizes public health, it will undermine the $887 billion outdoor recreation economy.”
Proponents of the old rule also insist it better protected headwater the streams and wetlands that are the foundation of larger downstream water bodies.
Elwood Brehmer can be reached at email@example.com.