Guest Commentary

Trump administration’s Waters of the United States rule gives power back to states

Andrew Wheeler, acting administrator of the Environmental Protection Agency, and R.D. James, assistant secretary of the Army for civil works
Andrew Wheeler, acting administrator of the Environmental Protection Agency, and R.D. James, assistant secretary of the Army for civil works

When President Donald Trump took office, he immediately began a process to remove and replace undue regulatory burdens that stifle American innovation and economic development. At the top of the list was the Obama Administration’s 2015 Waters of the United States rule. Today, the Environmental Protection Agency and the Department of the Army are fulfilling the president’s objective and proposing a new definition that would put an end to the previous administration’s power grab.

At issue is the extent of the federal government’s control over our nation’s waters. Under the Clean Water Act, the federal government has jurisdiction over navigable waters — defined as the “waters of the United States.” Federal regulators and the courts have broadened this definition over time, moving from waters a vessel can navigate to ponds and wetlands as well. The definition may seem like a trivial technicality, but it has enormous consequences for land use decisions nationwide.

In 2015, the Obama EPA put forward a definition that further expanded Washington’s reach into privately owned lands. They claimed it was in the interest of water quality. But it was really about power — power in the hands of the federal government over states and landowners. The Missouri Farm Bureau, for example, estimates that bodies of water — from streams to ephemeral drainage ditches — in over 95 percent of the state’s land area could come under the purview of the federal government. The rule was issued in spite of the fact that Missouri, and most other states, already have their own protections for waters within their borders, regardless of whether they are federally regulated as waters of the United States.

Shortly after he took office, Trump issued an executive order directing EPA and the Army to review and replace, as appropriate, the 2015 definition with one that restores the rule of law and the role of states and landowners in managing their land and water resources. He also explicitly charged us to consider doing so in a manner consistent with Justice Antonin Scalia’s opinion in the landmark Rapanos case.

Our proposed new definition would do just that. It would end years of uncertainty over where federal jurisdiction begins and ends. For the first time, we are clearly delineating the difference between federally protected wetlands and state protected wetlands. Our proposal would be clearer and easier to understand, and, inspired by Scalia, it adheres to the statutory limits of our authority. It would help a landowner understand whether a project on his or her property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals or wasting precious time. Finally, it would ensure that America’s water protections — among the best in the world — remain strong, while giving states and tribes the certainty to manage their waters in ways that best protect their natural resource and local economies.

The proposal identifies six categories of waters that are waters of the United States: traditional navigable waters, like the Mississippi River; tributaries, such as Rock Creek, which feeds into the Potomac River; certain lakes and ponds, such as Great Salt Lake; impoundments; wetlands that are adjacent to a water of the U.S. and certain ditches, such as those used for navigation or those affected by the tide.

It also details what are not waters of the U.S., such as features that only contain water during or in response to rainfall; groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; stormwater control features; and wastewater and waste treatment systems.

Under the 2015 rule, more farmers, developers and landowners across the U.S. would need to apply for a federal permit to exercise control over their own property — a costly and time-consuming action that runs counter to our republican idea of government. Not only can the process to obtain a federal permit cost tens of thousands of dollars, but the 2015 definition also put local land use decisions in the hands of distant, unelected bureaucrats. The new, more precise definition means that farmers, land owners and businesses will spend less time and money determining whether they need a federal permit and more time upgrading aging infrastructure, building homes, creating jobs and growing crops to feed our families.

Right now, because of litigation, the 2015 rule is in effect in 22 states, the District of Columbia, and the U.S. territories. Meanwhile, the previous regulations, issued in the 1980s, are in effect in the remaining 28 states. This regulatory patchwork creates uncertainty and impedes economic development. Our proposed definition would establish national consistency and restore the proper relationship between the federal government and states in managing land and water resources.

The U.S. is the gold standard for clean air and clean water. We reached that point through private sector innovation and cooperation between Washington and the states to implement our nation’s environmental laws. The Obama EPA’s 2015 definition upset that balance. The Trump administration’s proposal would respect the limits of federal authority and give hardworking Americans the freedom and certainty they need to do what they do best: develop, build and invest in projects that improve the environment and the lives of their fellow citizens.

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