Fulcher comments of revival of WOTUS regulations

Congressman Russ Fulcher is pushing back on the Environmental Protection Agency’s recent announcement that it will look into restoring rules and definitions for the Waters of the United States regulations implemented by the Obama Administration. In 2015, this rule established definitions that allowed the federal government to regulate bodies of water.

In January of 2020, the rule was overturned by the Navigable Waters Protection Rule under the direction of President Trump, shrinking the number of streams and wetlands protected by the Clean Water Act. Under the final rule, four categories of water are federally regulated:

• The territorial seas and traditional navigable waters,
• Perennial and intermittent tributaries to those waters,
• Certain lakes, ponds, and impoundments, and
• Wetlands adjacent to jurisdictional waters

The Trump-era rule also details 12 categories of exclusions such as features that only contain water in direct response to rainfall (e.g., ephemeral features), groundwater, many ditches, prior converted cropland and waste treatment systems.

“I commend the Trump Administration for keeping their promise and reestablishing the appropriate state authority in relation to the Clean Water Act,” said Fulcher. “This new rule will help Idaho farms, businesses, and other job creators so our state can continue to thrive as an economic leader in our nation.”

Now, the Biden Administration has announced that the NWPR is under review, signaling a potential return to Obama-era regulations by overturning the NWPR and subsequently allowing the EPA to reinstate and expand rules regarding water policy.

The CWA regulates discharges of pollutants into the waters of the United States and regulates quality standards for surface waters. Under the CWA, the EPA has implemented pollution control programs such as setting wastewater standards for industry. EPA has also developed national water quality criteria recommendations for pollutants in surface waters. The definition of these waters, therefore, sets the boundaries of these federal agencies’ authority.

The CWA made it unlawful to discharge any pollutant from a point source into navigable waters unless a permit was obtained from either the EPA or the Army Corps of Engineers:

• EPA's National Pollutant Discharge Elimination System (NPDES) permit program controls discharges.
• Point sources are discrete conveyances such as pipes or man-made ditches.
• Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge do not need a NPDES permit;
• Industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters.

“After reviewing the Navigable Waters Protection Rule as directed by President Biden, the EPA and Department of the Army have determined that this rule is leading to significant environmental degradation,” said EPA administrator Michael Regan. The issue of which streams and wetlands are subject to federal regulation has been the source of intense debate virtually since the Clean Water Act was passed

This potential action is the newest addition in a long line of environmental policies proposed by President Biden to “tackle the climate crisis” and has received significant opposition, particularly from rural states that were extremely burdened by the original WOTUS rule.

In April 2021, Congressman Fulcher joined Rep. Miller-Meeks’ Resolution, H.Res.318, “expressing a sense of the U.S. House of Representatives that the Navigable Waters Protection Rule not be withdrawn or vacated.” Congressman Fulcher commented on his co-sponsorship, “Idaho farmers, cattlemen, and ranchers will continue to face burdensome red tape if there is no protection from the Obama-era WOTUS rule. The federal government must continue to work with the states to lessen this threat.”

Most recently, Congressman Fulcher and the Congressional Western Caucus wrote to Regan and acting assistant secretary of the Army for Civil Works Jaime Pinkham to express serious concerns with the Biden Administration’s decision to potentially undo the 2020 Navigable Waters Protection Rule (NWPR) and reopen the definition of “waters of the United States.”