Waters of the United States (WOTUS) Rule

Date: February 17, 2022

Proposed Rollback of the Trump Administration’s Navigable Waters Protection Rule (NWPR) Could Reinstate and Expand Anti-Landowner Federal Regulations

The current WOTUS rule, established in 2020 and known as the Navigable Waters Protection Rule (NWPR), provides greater certainty for small businesses and allows states to continue to regulate local lands and water. However, the Biden Administration is now seeking to repeal the Trump-era NWPR and replace it with a rule that would expand federal jurisdiction significantly impacting owners with lands that are wet only part of the year, similar to what was proposed during the Obama Administration. 

The U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) recently held a public comment period as they work to undo the NWPR. Additionally, an Arizona District Court recently ruled that the NWPR should be tossed out. If the Biden Administration is successful, it would mean a return to an extreme interpretation of the federal government’s regulatory authority under the Clean Water Act (CWA) that’s in contrast to federal law and would require federal permits for lands that are dry most of the year.

  • On August 21, NFIB filed comments urging the EPA to keep the current NWPR in place.
  • On Sept. 21, NFIB hosted a free virtual briefing with U.S. Representative Dan Newhouse on what small business landowners need to know about WOTUS. Register here to watch the free WOTUS briefing on-demand.
  • In October 2021, NFIB joined The Cato Institute in filing an amicus brief supporting the Sackett v. Environmental Protection Agency petition for review of the proposed rules change at the U.S Supreme Court. In February 2022, SCOTUS decided to hear the case, which will clarify what bodies of water federal authorities may regulate, The case is expected to be heard near the beginning of the 2022 Term, which begins in October.
  • Now, your members of Congress need to hear about the harmful effects of the overreaching 2015 WOTUS rule so we may work to preserve the 2020 Navigable Waters Protection Rule. You can use our simple Take Action system to send your legislators a message today.
The 2020 Trump Administration WOTUS Rule, Known as NWPR

After repealing the Obama-era “Waters of the United States” (WOTUS) Rule in response to lawsuits filed by NFIB and other business groups, the EPA and Corp’s 2020 issued a new Navigable Waters Protection Rule (NWPR). The NWPR provides greater clarity for landowners who have historically struggled to know whether they can safely develop or use portions of their land that are occasionally wet without being required to obtain expensive and time-consuming federal permits.  The 2020 NWPR rule makes clear that private property is not subject to CWA regulation if it is not connected to an interstate water and only wet a few days or weeks each year. Water flow that is only “ephemeral” may be regulated at the state level but is not subject to federal regulation. 

The 2020 NWPR rule clarifies that only the following waters are subject to CWA regulation:

  • Traditional navigable waters (e.g., oceans, bays, sounds, rivers);
  • Streams and other tributaries with a continuous surface connection to traditional navigable waters on a regular basis in a typical year;
  • Lakes, ponds and other impoundments with a continuous surface connection to traditional navigable waters on a regular basis in a typical year; and
  • Wetlands that touch traditional navigable waters, or other regulated waters.

The Trump-era NWPR is important to small farmers, ranchers, and property owners/developers. NFIB is fighting to ensure that the EPA does not illegally expand its regulatory authority over private property owners across the country.

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Questions?
Businesses with questions about taking action, Clean Water Act regulation and or proposed changes to WOTUS can contact the NFIB Small Business Legal Center at 800-NFIB-NOW. A member of the NFIB Small Business Legal Center team will be happy to discuss your concerns.

This Alert Is For Informational Purposes Only And Does Not Constitute Legal Advice.

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