After battling against the Obama-era Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers’ 2015 “Waters of the U.S.” rule (WOTUS), a wide-ranging, Nebraska-based coalition is offering support for a revised clean water rule offered by the EPA and Army Corps of Engineers. The agencies were obligated to make changes to the WOTUS proposal in response to a 2017 Presidential Executive Order. The Common Sense Nebraska coalition offered support for the new proposal in comments submitted to the agencies April 15.
“This new proposal addresses many of the concerns our coalition partners had with the 2015 WOTUS rule. It is clearly a step in the right direction for all those who would have been impacted by the federal overreach of the previous proposal,” said Steve Nelson, Nebraska Farm Bureau president, on behalf of the Common Sense Nebraska coalition.
Specific improvements noted by the coalition in comments included the agencies' recognition that the Clean Water Act does not authorize the agencies to federally regulate every water body and waterway in the United States. The new proposal recognizes the original intent of Congress that federal regulations apply to permanent flowing and standing waterbodies that are traditionally navigable waters or have a specific connection to traditional navigable waters, as well as wetlands abutting or having a direct hydrological surface connection to those waters.
The proposal also recognizes an individual state’s right to regulate and co-implement protections for state waters under the Clean Water Act. Congress recognized that certain water bodies are important to the nation as a whole but other waters should be managed by the states. The 2015 WOTUS Rule in many ways failed to appropriately recognize the rights of individual states.
Lastly, the revised proposed rule offers greater clarity and certainty through clear definitions regarding which waters are subject to Clean Water Act jurisdictions through the elimination of case-by-case “significant nexus” testing. This method of determining whether a water body or waterway was subject to federal regulation often added both considerable time and added costs for those seeking to identify their regulatory obligations under the Clean Water Act.
“While the coalition offered broad support for the revised clean water rule, we also offered suggestions for improvement,” said Nelson.
One of the key areas for adjustment lies in the definition of “traditional navigable waters.” In comments, the coalition urged the agencies to limit the definition of traditional navigable waters to those waters that are used to transport interstate or foreign commerce, as consistent with the federal Rivers and Harbors Act jurisdiction. The coalition believes the change is needed to tighten up the overly broad definition in the proposal.
Other areas the coalition noted as needing improvement include how the agencies define “intermittent” tributaries, elimination of provisions that could be interpreted to having all ditches subject to Clean Water Act regulations, as well as improvements of the definition of “wetlands.”
“We believe our recommendations will help in this rulemaking process by eliminating ambiguities, that if not addressed, could make their way into the final rule and lead to more conflicts into the future,” said Nelson.
Common Sense Nebraska is a Nebraska-based coalition consisting of organizations and entities that have come together in response to EPA’s “Waters of the U.S.” proposal, which would harm both rural and urban Nebraskans through expansion of EPA’s powers and authorities under the federal Clean Water Act. The coalition’s purpose is to build awareness and understanding of the EPA proposal and the impact it would have on Nebraskans.