On July 23, Senator Joni Ernst, R-Iowa, introduced SB 2421, titled the Clarifying Legal Exclusions Around Regulated (CLEAR) Waters Act. The short bill was cosponsored by six other senate Republicans and seeks to categorically exclude certain types of water bodies from regulation under the Clean Water Act. Given the focus, the bill overlaps with the Waters of the U.S., which is currently being reworked by the Environmental Protection Agency and the Army Corps of Engineers.
“I am making it CLEAR that the federal government has no businesses regulating cooling ponds, municipal treatment plants, groundwater and streams that only flow after rainfall under WOTUS,” Ernst says.
The bill, which was referred to the Senate’s Environment and Public Works committee, would make the following exclusions to the definition of “navigable waters” within the Clean Water Act:
- Any element of a waste treatment system, such as settling lagoons or treatment ponds.
- Ephemeral water bodies that flow only after rain.
- Groundwater.
- “Any other features determined to be excluded by the Administrator and the Secretary of the Army, acting through the Chief of Engineers.’’
The bill in context
The bill is redundant to many elements of the Supreme Court’s 2023 Sackett decision, which is directing EPA’s on-going WOTUS rework effort. For example, the 2023 Sacket decision already excludes waste treatment system features like lagoons and treatment ponds.
Though groundwater has not been regulated as navigable waters, EPA notes groundwater “is often hydrologically connected to navigable waters” as it relates to carrying pollutants. Under the 2023 Sackett decision, however, groundwater would only count as navigable waters if a groundwater-fed wetland connected to a traditionally navigable water.
Still, agricultural voices have praised the bill. Iowa’s Secretary of Agriculture, Mike Naig, praised Ernst for championing the state’s farmers and businesses for instance.
“This legislation will provide much-needed clarity and consistency when it comes to WOTUS, helping end the constant policy whiplash that changes with each new administration. It’s a common-sense approach that brings certainty to those who are working every day to responsibly manage our land and water.”
WOTUS rework recent action
Agricultural stakeholders have long demanded regulatory certainty around WOTUS and its implementation. This was a resounding theme of listening sessions held by EPA earlier this year.
“By making federal regulation consistent, clear and by leaving room for state primacy in regulating other streams, lakes, wetlands and water features, EPA and the Corps can implement a rule that is both consistent with the Supreme Court’s decisions and with Congress’s intent in the Clean Water Act,” said Laura Campbell of Michigan Farm Bureau in the May 1 listening session held for agricultural stakeholders.
EPA has said it expects to release a proposed final WOTUS rule this summer, updating it to correspond with the 2023 Sackett decision. Once released, the rule will be available to the public for comment. The agency expects the new rule will go into effect by the end of 2025.
Though not directly connected to the WOTUS rework effort, EPA has recently put out a call for public comment on challenges stakeholders have had with CWA Section 401 implementation. This deals with individual states’ ability to put limits on certain types of federal action that might impact water quality within their jurisdiction. Interested stakeholders have until 11:59 p.m. EDT on Aug. 6 to submit comments on Regulations.gov or the Federal Register.
