The EPA is on track to finalize a new waters of the United States, or WOTUS, rule by sometime this year.
The agency sent the final rule to the White House Office of Management and Budget on July 12 for an interagency review, https://www.reginfo.gov/…. OMB reviews are limited to 90 days but there is no minimum period of review.
At the end of 2018, the agency released a proposed rule that would include just six categories of jurisdictional waters: traditional navigable waters; tributaries; certain ditches that are navigable or affected by tide; lakes and ponds; impoundments, and wetlands that abut or are connected to waters of the United States.
The proposal lists waters that would not be regulated. That includes certain land features where water is present only as a result of heavy rainfalls, groundwater, most ditches, prior-converted croplands, storm water and wastewater features.
Before the EPA and the U.S. Army Corps of Engineers finalize the rule, however, they had a number of concerns to address.
Agriculture and rural interest groups filed public comments on the proposal and called for changes in the proposed rule.
Generally, the rule has been lauded by ag interests because it narrows federal jurisdiction of waters and has clarified a number of concerns the industry had about the 2015 rule.
In Iowa, where farmers have installed a wide network of drainage tile systems to drain off otherwise flooded fields, the Iowa Drainage District Association said the proposal creates a number of problems, including a lack of clarity on drainage ditches. There are 9 million acres of land in the state being subject to draining, according to estimates.
For many years, court challenges to the Clean Water Act focused on the definition of navigable waters. A number of ag groups including the Fertilizer Institute and the National Association of State Departments of Agriculture urged the agency to clarify that traditional navigable waters are those used in transport.
The 2015 rule created much confusion about whether ditches were considered jurisdictional waters. Some agriculture groups suggested the agencies eliminate ditches from the new rule altogether.
Read the proposed new rule here: https://www.epa.gov/…
Todd Neeley can be reached at firstname.lastname@example.org
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