On January 23, EPA Administrator Andrew Wheeler, along with R.D. James, the assistant secretary of the Army for civil works, signed the Navigable Waters Protection Rule. The rule replaces the Obama-era redefinition of the “waters of the U.S.” (known as WOTUS), which was repealed in September, fulfilling a campaign pledge by President Donald Trump.
Green groups and media outlets are portraying this redefinition as a “rollback,” even though some state environmental protections are stricter than federal ones, and even though the WOTUS rules were never applied (except briefly in some states). A typical headline read: “Trump Administration Rolling Back Federal Water Protections.”
The new, narrower rule was proposed in December 2018 and received more than 600,000 public comments. Broadly speaking, the new rule assigns permanent bodies of navigable water to federal protection, while leaving smaller streams and upstream and ephemeral bodies of water to state protection—but with important qualifications and exceptions.
It gives a clear, concise definition of which waters are federally protected, including interstate wetlands and “lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters.”
The clarification ends decades of legal ambiguity about the scope of Clean Water Act (1972) protections that left room for the Corps of Engineers and EPA to aggressively pursue owners of wetlands and farmland for alleged infractions of water rules, even on lands that had no discernible connection to navigable waters. Some defendants fought back, winning in lower courts and sending their cases to the Supreme Court.
But a divided Supreme Court flubbed the job of clarifying the limits of the Clean Water Act’s authority. Instead, two conflicted Supreme Court cases resulted in legal confusion. In Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers (2001) and Rapanos v. United States (2006), the Supreme Court recognized that there were limits to the authority of the Clean Water Act. But its members couldn’t agree on what those limits were.
In the narrowly decided and split (4-4-1) Rapanos case, Justice Antonin Scalia gave a reasonable and precise definition of “waters of the U.S.,” but couldn’t get enough of his colleagues to agree. To this day, legal scholars disagree over which of the opinions in that conflicted case are “controlling”: Scalia’s narrower definition of WOTUS, or Justice Kennedy’s broader one. (The Trump administration announced early in its rule-revising process that it would be using Scalia’s narrower definition as guidance rather than Kennedy’s).
The WOTUS rule-making process that followed under the Obama administration was challenged on several grounds. Critics argued that the EPA was attempting to make new law without Congress, usurping the legislative role. The EPA ignored its own rules and didn’t hold the required number of public hearings. It illegally campaigned for the new rules on social media before they became official. The Corps of Engineers’ own scientific experts testified internally that the proposed redefinition was not based on science, as leaked documents later revealed.
Farmers, ranchers and business groups instantly recognized the proposed WOTUS rule as a massive federal overreach that would neuter the rights of private property. That’s why dozens of associations and groups and 31 states sued. In the ensuing legal flurry, one judge briefly allowed it to take effect in some states, but apart from that, it was never applied.
Widespread opposition to the WOTUS rule existed before Donald Trump declared his candidacy and campaigned against it. But after he became president, his face was put on opposition to WOTUS. Democrats voted in lockstep to block attempts in Congress to roll it back. Media coverage of the issue became more partisan and less honest.
Environmental groups and the state of California have threatened to sue over the new rule but may await the outcome of this fall’s elections.
The EPA has posted endorsements of the new rules from dozens of governors, members of Congress and trade and farm associations.
Speaking for many, 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.”