Trump Administration Finalizes Replacement of “WOTUS” Rule

The 2015 rule sought to expand the number of waterways protected by federal Clean Water Act protections
January 28, 2020

The Trump administration has finalized a rule that narrows the definition of waterways that fall under federal protection.

Supporters of the revised law, including Indiana Attorney General Curtis Hill, say it lifts regulatory burdens from landowners, but critics say it constitutes an all-out assault on the safety of water for both human and animal consumption.

The Navigable Water Protection Rule reverses a 2015 expansion of waterways considered “waters of the United States,” making certain bodies of water fall under lenient state pollution requirements instead of stricter federal Clean Water Act regulations.

The new rule limits the definition of “waters of the United States” to four categories: territorial seas and navigable waters; perennial and intermittent tributaries; certain lakes, ponds and impoundments; and wetlands adjacent to jurisdictional waters.

rule posting
The "Navigable Water Protection Rule" limits which waterways fall under federal protections.

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers said the new rule was intended to provide stakeholders with the legal clarity needed in order to comply with federal regulations.

“After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided,” said EPA administrator Andrew Wheeler.

The new rule is expected to benefit stakeholders economically at the expense of water quality and the health of Hoosiers and other Americans.

“President Trump’s administration wants to make our waters burn again,” said Earthjustice attorney Janette Brimmer. “This all-out assault on basic safeguards will send our country back to the days when corporate polluters could dump whatever sludge or slime they wished into the streams and wetlands that often connect to the water we drink.”

The 2015 Clean Water Rule, also known as the WOTUS rule, had eight categories of waters that fell under the Clean Water Act’s jurisdiction, including protections for some waterways that are dry for part of the year.

Critics of the rule said the ambiguity of the previous rule allowed the federal government to impose jurisdictional protections at will, and that a new rule was required to provide legal clarity.

POTUS signing WOTUS executive order
Soon after taking office, President Donald Trump signed an executive order that would lead to the replacement of the 2015 WOTUS rule.

A coalition of 11 states, including Indiana, sued the federal government to prevent the rule from taking effect. In 2018, they received an injunction from a federal appeals court, which ruled that the 2015 rule would cause “loss of sovereignty” and “irreparable harm.” Eventually, lawsuits prevented the rule from taking effect in Indiana and 27 other states.

Even though the state of Indiana was never subject to the effects of recognizing the 2015 WOTUS definitions, government and business interests had much to say about its repeal and replacement.

“The Obama administration weaponized a well-intentioned law, placing an enormous regulatory burden on northeast Indiana’s farmers,” said Rep. Jim Banks, U.S. representative for Indiana’s 3rd congressional district. “Their greatly expanded WOTUS rule allowed the EPA to regulate too many kinds of waterways.”

Indiana Attorney General Curtis Hill agreed.

“The final Navigable Waters Protection Rule appropriately replaces the Obama-era rule that expanded the definition of ‘waters of the United States’ to include land areas that only get wet when it rains. This broad designation allowed federal authorities to claim jurisdiction over private property in Indiana,” Hill said.

Oil and mining associations; manufacturing and home building groups; electric utilities and agricultural organizations backed the new rule.

“Under the previous Waters of the United States rule, many ponds, streams, and irrigation ditches traditionally overseen by land owners and state governments fell under the control of the federal government, creating uncertainty over property rights,” said American Legislative Exchange Council CEO Lisa B. Nelson. “The Trump administration’s new rule promotes federalism by defining which bodies of water are regulated by the federal government and giving greater control to state, tribal, and local governments.”

Maintaining the status quo has not resulted in clean waterways in the state of Indiana.

water report cover page
The state of Indiana is required to submit an integrated water monitoring and assessment report every two years.

Between 2010 and 2018, the miles of streams affected by animal and livestock feeding operations doubled.

Those operations are known to produce tons of animal waste containing pathogens like E. coli, parasites and high levels of phosphorus and nitrogen.

Those pollutants can have serious effects on human health for Hoosiers living downstream from those operations.

The number of state streams impacted by E. coli nearly doubled in eight years. In 2010, 12,717 miles of streams were found to be impaired by E. coli contamination. That number rose to 24,687 in 2018.

The number of impaired waters in Indiana have increased since 2010, and that trend may continue in 2020.

State data also indicate a rise in stream areas where fish are contaminated with PCBs, a group of persistent manmade chemicals that can cause cancer and have other toxic effects.

Acid mine drainage, or the outflow of acidic water from mining sites, more than doubled in streams in those eight years. Runoff from golf course in streams is also six times greater than it was in 2010.

“Water resources are so interconnected,” said Environmental Law & Policy Center executive director Howard A. Learner. “To protect the Midwest’s great waterways – the Mississippi River and the Great Lakes – we need to protect the backyard brooks, community creeks and steady streams that feed them. This misguided new rule puts our shared water resources at risk.”

Trump Administration Finalizes Replacement of “WOTUS” Rule