After a months-long logjam in court and the federal bureaucracy, the new “Waterways of the United States” (WOTUS) rule, now called the “Navigable Waters Protection Rule,” went into effect on Monday after a San Francisco judge ruled against Democrat plaintiffs’ attempt to block its implementation.
WOTUS was an Obama-era guidance on authority within the Clean Waters Act (CWA) for the Environmental Protection Agency (EPA).
Widening the “navigable waters” definition further — even including drainage ditches and glorified puddles — WOTUS greatly expanded the regulatory reach of the EPA.
The CWA was passed to restrict the dumping of pollution into public waterways.
Due to the expanded definition, many farmers, ranchers, and other property owners were newly subjected to heightened regulations and costs they weren’t before.
After a court ruled last year the administration of the original rule violated the rulemaking process — specifically, that interested parties were not properly afforded the opportunity to issue feedback — the Trump Administration announced its new version of the rule in January.
The public comment period lasted 60 days but then the implementation got bogged down after a last-minute court challenge by 17 blue-state attorneys general. The San Francisco federal judge decided not to issue a preliminary injunction on the rule, stating the plaintiffs had not provided sufficient evidence to warrant a stay, allowing the new rule to go into effect nationwide.
However, a Denver federal judge issued an injunction on the rule’s implementation in Colorado.
The new rule separates governable waterways into four categories:
- Territorial seas and traditional navigable waters
- Perennial and intermittent tributaries to those waters
- Certain lakes, ponds, and impoundments
- Wetlands adjacent to jurisdictional waters
This narrower definition has long been awaited by property owners subjected to burdening regulations.
However, the original rule was shot down, not on substantive grounds, but on procedural ones. The court has not yet ruled on the law’s directive, so the rule can be changed again by the next administration whenever that comes.
The responsibility to change the law, unless a court decides to find its authority on the matter, rests with Congress.
But for now, the new rule is in effect and property owners with “ephemeral waterways,” waters with irregular flows, celebrate the reprieve.
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Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad watching and quoting Monty Python productions.