Q&A With EPA's Rod Snyder on WOTUS

LINCOLN, Neb. (DTN) -- The EPA on Friday released a final rule defining waters of the U.S., in an action the agency hopes will clarify a number of issues for farmers and ranchers as it relates to the Clean Water Act.

EPA Agriculture Advisor Rod Snyder answered a number of questions posed by DTN this week about WOTUS.

The following Q&A has been edited for clarity.

Q: What do farmers and ranchers need to know about this WOTUS rule?

A: I've had a number of discussions with farmers and ranchers and ag groups over the last year and one of the first things that I tried to explain is that under the Clean Water Act, Congress has directed EPA and Army (Corps of Engineers) to develop a definition of waters in the U.S. that really helps to determine which waters are jurisdictional under federal law and which are not.

That is a clear function of the Clean Water Act that Congress directed our agency to take care of. And so, this rulemaking is born out of that. I think the challenge has been that over the last number of years, especially the last six or eight years, the only constant that we've had in this arena has been change. There have been a couple of different federal rules that have been published. Those were both vacated by federal courts. And so that's created a lot of uncertainty and inconsistency for farmers and landowners.

Probably our biggest goal through this process has been to come up with a durable rule that can stand the test of time and provide clarity, consistency and a reasonable definition for farmers and ranchers going forward. So, really, I think it's important to acknowledge that at the top that we want to end the ping-ponging and the back and forth.

Q: What has changed from the proposal to the final rule?

A: We received 114,000 comments during the public-comment period and that's in addition to more than 30,000 pre-proposal recommendations that came in, so the amount of public input into this process was incredibly robust, and a lot of that did come from the ag sector.

We know that based on that feedback some of the exclusions for the ag sector have been important over the years and so we're actually going to be codifying several exclusions in the regulatory text that's different from what was in place prior to 2015.

So, in general, we're using the pre-2015 framework. So not the Obama or Trump rules, kind of reverting back. But one of those changes is that we're actually going to be putting the prior-converted cropland exclusion into the regulatory text. We think this helps provide clarity and certainty for farmers and then some other exclusions will be added to the regulatory checks as well, including certain ditches and irrigated areas, just to make it clear that we're not attempting to regulate those kinds of features.

Q: What does EPA believe makes this rule more durable than previous rules?

A: Well, we're trying to learn from the past few rulemakings and try to come up with something that we believe is defensible and rooted in the prior regulatory framework and also rooted in the prior Supreme Court decisions of SWANCC (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 2001) and Rapanos (Rapanos v. United States, 2006). We clearly needed to adhere to what the Supreme Court has said on this in the past and we think we've accomplished that with this rule.

Q: How does this rule deal with long-standing agriculture exemptions?

A: Converted cropland is certainly the most prominent one. So, if you had a wetland historically back earlier in the 20th century that was farmed, and as of, I think, 1985 was the cutoff date that was mentioned in the farm bill, that if that has been farmed and if it remains available for commodity crop production, that exclusion is certainly still in place. And actually, we think we've strengthened that simply because we put it into the text of the rule itself.

There's also other types of activity-based exemptions under the Clean Water Act that remain unchanged. So, plowing and seeding and construction and maintenance of irrigation ditches, all of that does not require a permit under the Clean Water Act and that remains exactly the same as before. If activities were exempt from Clean Water Act permitting in the past that would remain the same. And we think we really tried to bring clarity to the exclusions front.

Q: The significant-nexus test was a real concern for farmers and ranchers in the 2015 rule, as many in the ag community viewed it as an attempted land grab by EPA. What will significant nexus mean for farmers and how will the agency help producers interpret its meaning?

A: Well, significant nexus and relatively permanent, the two standards that resulted from the Rapanos case, remain in place because we're really trying to just start with the foundation of the pre-2015 text.

And so those standards are part of this final rule. But I think part of what we hear from farmers and landowners is that the way those standards are implemented can sometimes be confusing or inconsistent from region to region.

So, one of the things that we did last spring and summer of 2022, we held regional roundtables with ag groups and other stakeholders around the country to talk about how WOTUS has been implemented. How, for example, these wetlands tests have been utilized on the landscape.

And we're going to be publishing a couple of things that I think are important to flag. One is we'll provide a summary of action items coming from those regional roundtables that will include additional training and guidebooks and also some other regional information for local Corps districts and EPA regional offices that we think can be critically helpful in improving the way that we implement WOTUS going forward.

The second piece is that we're going to be publishing a joint memo between EPA, USDA and Army that will also begin to specifically look at the way the three agencies will work together on some of the ag provisions, including things like prior-converted cropland, that we need to work closely with USDA on. Really, we've actually taken steps to align the definition with USDA on prior-converted cropland that will be reflected in that joint implementation between the three federal agencies.

Q: Farmers and ranchers are looking for certainty with the Clean Water Act when it comes to their operations. How does EPA believe this rule brings that certainty compared to previous rules?

A: We believe that we're publishing a rule that is legally defensible and that will stand the test of time that will actually bring stability to this space. That's job number one, so that we aren't writing new rules every few years; that, I think, is detrimental to farmers and landowners.

By putting certain things into the regulatory text around the exclusions, I think that's certainly helpful. And then really leaning into implementation improvements. All of that we believe is going to be useful going forward. We think this rule is reasonable in its approach. We think it's something that's likely to bring additional certainty and clarity in a way that perhaps the last two rulemakings didn't achieve.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

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