EPA prepares to undo Trump-era part of Clean Water Act, add back road ditches to federal wetland oversight

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By COLE LAUTERBACH

The Environmental Protection Agency is finalizing rules for how it will implement a controversial part of the Clean Water Act. 

The waters of the United States, or WOTUS, definition details that the EPA sets the threshold and exceptions of what waterways fall under federal jurisdiction. A waterway, from rivers to road ditches, that fall under the federal umbrella under WOTUS can only be altered with EPA permission. 

The final rule change goes back in time, reinstating the rules for navigable waters, seas, interstate waters and upstream sources. The agency says the final rule reverts policy back to what it was before it was expanded in 2015.

“When Congress passed the Clean Water Act 50 years ago, it recognized that protecting our waters is essential to ensuring healthy communities and a thriving economy,” said EPA Administrator Michael S. Regan. “Following extensive stakeholder engagement, and building on what we’ve learned from previous rules, EPA is working to deliver a durable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing greater certainty for farmers, ranchers, and landowners.”

The final proposal was met with criticism by road builders, who say applying WOTUS to road ditches would undermine key provisions in President Joe Biden’s infrastructure law.

“Federal environmental reviews can take as long as seven years to complete for new transportation projects. While the bipartisan Infrastructure Investment and Jobs Act (IIJA) sets a two-year review timeline, EPA’s rule puts this goal out of reach for many projects by adding more permitting requirements with no resulting tangible environmental benefits, and in the process increasing the time it takes to deliver transportation improvements,” said ARTBA Vice President of Legal & Regulatory Issues, Nick Goldstein.

The rule had been narrowed by an EPA led by former-Trump appointees.

In June 2021, the EPA and the Army Corps of Engineers announced it intended to redefine WOTUS. 

The U.S. Supreme Court heard Sackett v. EPA, a case filed against the agency by an Idaho landowner, in October. The court is expected to release an opinion in early 2023.

Cole Lauterbach is a managing editor for The Center Square covering the western United States. For more than a decade, Cole has produced award-winning content on both radio and television.

35 COMMENTS

  1. Between the EPA, Army Corp. of Engineers the Native Corporations and President Trumps denying ACE permits plus Bristol Bay Commercial fishing permit holders with civil action potential, and the vast majority of Alaskans, the pebble prospect which is owned by Northern Dynasty a foreign company is dead, and I have not even mentioned Alaska’s Congressional delegation who oppose that particular mine 😉

    • As long as we need rare earths, Pebble will live. As long as the CCP plays the ugly monopolist, Pebble will live. As long as the greens push for renewables, Pebble will live. Shoot, it will probable be dug much sooner than any of us expect. Cheers –

      • agimark; Your entire piece is incorrect 😉 Its been more than 20 years we have kept foreigner Northern Dynasty off those spawning grounds and were just getting warmed up 😉

  2. Ah, the Imperial Federal Government.

    Sometimes I wish they would just declare themselves rulers so we could get about the business of overthrowing them. This slow roll of tyranny is annoying.

  3. Guess this may explain why the DOT was forced to install these ditches even where they were unnecessary on all road projects in order to receive federal funding. Now if they could just figure out how to make the water stand on 175 feet of gravel bed we might have roadside ducks. That would almost make up for the land they stole to facilitate the projects. Or, maybe the BLM could purchase this land from the owners, since the State didn’t. Most of these ditches have never had water and never will.

  4. We need to declare all federal lands ours and tell Washington to pound sand. We have a right to take care of our state the way we want not some person living in another state or country.

    • Mark; The federal government purchased Alaska in 1868? from Russia, so Alaska as a territory achieved statehood by establishing an education, transportation and justice system to become a state. Alaskans did not purchase the land from the federal government.
      So the federal government can do what so ever it wants with the land called Alaska.

      • I like how New York state has 98 percent of its land in fee simple private title. I wonder if that helped to make private wealth possible in that state. We should have stopped it cold! Who ever heard if 98 percent of the land in fee simple. :*(

      • I fully understand how Alaska became a state. I just am proposing an alternative to someone living in fanicyland telling us how is going to be. They have ruined everything they touch and we Alaskans can figure out what we want as we live here. All these out of state nonprofits and Bidens advisors we don’t need .

      • Oh really, Caleb? You mean, illegal, as in 99% of what the federal government currently does?
        .
        When will you conformists and sheep ever realize that the only way to ensure, retain and/or reclaim freedom is to DEMAND it, and to fight for it? Clearly, you are fine with being a subservient slave of a totalitarian centralized political behemoth, but many of us are not.

          • WHOOSH! Right over your head!
            .
            The point was, oh clueless one, that securing one’s inherent rights is the RIGHT and proper thing to do, even if — and ESPECIALLY when — it is “illegal”. When subjected to tyranny, the letter of the law can go to Hell.

  5. “ ensuring healthy communities and a thriving economy “
    You can’t make this stuff up……….
    Nothing could be farther from the truth with anything that they institute.
    If I remember right the first thing on their agenda(well after closing Keystone)
    Was repainting Air Force One.
    Never seen a group of people, so filled with hate, and the inability to think or reason

  6. Too bad Alaska doesn’t have a U.S. Senate delegation ready, willing, and able to stop EPA officials from implementing this program.

  7. Look for a unanimous decision in Sackett v. EPA, this will necessitate another redefining of WOTUS and navigable waterway by the EPA. The left keeps trying to redefine words to suit their beliefs, or they wholly discard definitions. We all know what land is, we all know what water is, just like the case in California where they tried to say bees were fish…we know that words have meaning and definitions tell us what those meanings are. Road side ditches are not navigable waterways.

      • Of course roadside ditches don’t have to be navigable waters, it’s just that the EPA wants to redefine them as such against all reason! If, as you say, that’s a state ownership criterion…then the EPA has no business dealing with roadside ditches. I’m glad you’ve rethought your position you stated below.

  8. I hate to be depressing, but aren’t they also out of funds as they go about doing the overlord’s work?

  9. Just a wee bit of reality here. Roadside ditches are conduits from a pollution source to the sea. That’s the case in my coastal town where shipyard waste drains to the bay

    • Caleb,
      Do you think it’s the purview of the federal government to see what is in every ditch in the nation? You don’t think local or state government can handle such things? Which section of the US Constitution to you imagine gives the Federal Government the ability to monitor and regulate the ditch in front of your house?

      • i also agree with Caleb. I quoted the new regulations regarding roadside ditches so you can save us the hyperbole Steve-O. I do not pretend to be a constitutional scholar I will leave that to you. But maybe passing a clean water law falls under the same powers that let the federal government repair seawalls, dredge waterways, clean up toxic sites. Actions that allow people to live in their community. Perhaps under the part that says promote the general welfare and secure our prosperity.

        • Leo,

          You and Caleb might want to review the Alaska Department of Environmental Conservation website, specifically the water section https://dec.alaska.gov/ it might help your understanding of what is currently being done in this state to protect ditches. There’s even a section for reporting wastewater complaints if you know of someone illegally dumping pollutants into ditches.

    • Agree with Caleb. Each year, untold hundreds if not thousands of tons of pollution enter the environment and waterways from roadside ditches, in the form of rubber microparticles from vehicle tires. Many states also add thousands of tons of whatever salt they use to de-ice the roads.

  10. Exclusions from “Waters of the United States”
    Ditches (including roadside ditches), excavated wholly in and draining only dry land, and that
    do not carry a relatively permanent flow of water.

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