Two GOP lawmakers in the U.S. Senate introduced a bill to create a new definition of federally protected waters and codify the Trump administration's efforts to rescind the Obama-era Clean Water Rule derided by many energy producers.
The bill's sponsors said the legislation would provide greater certainty to farmers, landowners and businesses on the definition of waters of the United States, or WOTUS, and correct perceived regulatory overreach with the Clean Water Rule, which the U.S. Environmental Protection Agency and Army Corps of Engineers issued in 2015. The proposal comes as the EPA is close to finalizing a new rule to define federally regulated waters that could sharply reduce the number of water bodies protected under the Clean Water Act.
"President [Donald] Trump and his administration have taken tremendous steps to roll back this overreaching regulation and provide for more certainty with a new, clearer definition of WOTUS," said U.S. Sen. Joni Ernst, R-Iowa, who introduced the Define WOTUS Act, on Aug. 1 along with Sen. Mike Braun of Indiana. "But it's the job of Congress to make a new, reasonable definition permanent, and that's what this bill does — it ensures more predictability and workability for Iowans for years to come."
The Define WOTUS Act, or S. 2356, stipulates that navigable waters subject to federal regulation include territorial seas; interstate waters used to transport interstate or foreign commerce; "relatively permanent" bodies of water commonly known as streams, rivers or lakes that flow into interstate waters; and wetlands that are adjacent to or have a continuous surface water connection to interstate waters.
In contrast to the Clean Water Rule, S. 2356 excludes intermittent or ephemeral streams from the EPA's Clean Water Act permitting programs. The bill defines ephemeral streams as those that have continuous flow for at least 185 days a year, while the Clean Water Rule defines those bodies as running for the majority of the year.
S. 2356 would also prevent the EPA from using satellites, aerial photographs and other tools beyond the "naked eye" to determine which waters fall under the agency's jurisdiction and bar the EPA from changing a finding that waters are nonjurisdictional as long as an affected property owner "has an identifiable and substantial legal interest in the property."
The legislation was referred to the U.S. Senate Committee on Environment and Public Works. Republicans have pushed to overturn the Clean Water Rule, giving the bill a good chance of passage in the GOP-controlled Senate, but the measure is almost certain to hit resistance in the Democrat-majority U.S. House of Representatives.
The legislation coincides with the Trump administration's work to finalize a new rule this August defining federally regulated waters. The revised definition the agency proposed in December 2018 contained a narrower interpretation of waters of the United States and could strip federal protections from at least 51% of wetlands and at least 18% of streams, according to EPA documents obtained through a Freedom of Information Act request. As with the new Senate bill, the proposal also maintained a decades-old exemption for waste treatment systems such as coal ash ponds, although the EPA asked for comment on the definition of "waste treatment system."
The proposed regulation is part of a two-step process to repeal the Clean Water Rule, which the U.S. Court of Appeals for the Sixth Circuit stayed nationwide in 2016 amid challenges from several states and some energy producers. But in January 2018, the U.S. Supreme Court found that the federal appeals courts lacked jurisdiction to conduct the initial review of the regulation, restoring the Obama-era rule in 22 states.