Despite EPA Administrator Michael Regan claiming that “he doesn’t intend to pull the Obama-rule off the shelf,” and discussing how much they’ve learned since 2015, the Environmental Protection Agency (EPA) is undoing the Trump-era Navigable Waters Protection Rule (NWPR), returning the definition of “navigable waters” to a murky “significant nexus” parameter. In turn, the Biden administration intends to restore rule parameters back to the controversial 2015 “Waters of the United States” (WOTUS) rule to the Clean Water Act.
The Biden administration has called for restoring and recodifying WOTUS to pre-existing Obama administration-era rules, which broadly defined if waters had “significant nexus” to jurisdictional waters.
Environment Law and Policy noted how lopsided and complex the Obama-era rule was, writing, “Determining if waters had a “significant nexus” to jurisdictional waters under the 2015 rule often required case-specific analysis or the hiring of a consultant to assist with a jurisdictional determination and sometimes led to inconsistent application of the rule in different regions.
The Trump-era rule narrowed down and clarified the definition of “jurisdictional waters” by creating four distinct categories including “territorial seas and traditional navigable waters; perennial and intermittent tributaries that contribute surface water flow to such waters; certain lakes, ponds, and impoundments of jurisdictional waters; and wetlands adjacent to other jurisdictional waters.”
Many celebrated the 2020 NWPR revision because the Obama administration used the previous rule to infringe on private property rights. One egregious example was highlighted by the Wall Street Journal when the late Joe Robertson, a Navy veteran, was sent to jail for digging ponds on his property:
Robertson, a Navy veteran who died in March at 80, spent 18 months in prison for getting the definition of “navigable waters” wrong. The land he owned in the Montana mountains was more than 40 miles from the nearest genuinely navigable river, but a trickle ran through it: the combined force of two garden hoses meandering down the slope in a channel about a foot deep and a foot wide.
Before he died, Robertson and his wife, Carrie, dug ponds in the path of their modest mountain trickle. The Environmental Protection Agency declared it a “navigable water” subject to the Clean Water Act and prosecuted him for “discharging” pollutants without a permit. He was found guilty in 2016. In addition to his 18 months in prison, Robertson was ordered to pay a $130,000 fine.
Per the EPA website, the Clean Water Act “establishes the scope of federal jurisdiction under the Act.” However, the law doesn’t define what is or isn’t considered “navigable” waters. Instead, the EPA and the U.S. Army Corps of Engineers are tasked with defining WOTUS regulations.
If the Biden administration is to revert back to the 2015 rule and broadly define what a “navigable water” is, it could lead to more tragic cases like Joe Robertson’s and give the EPA license to encroach on property rights, setting back progress made by the last administration.
Biden’s EPA would be wise to not repeat past mistakes.