New WOTUS Rule Dials Back Federal Reach

New WOTUS Rule Would Exempt Prior Converted Cropland From Jurisdiction

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The EPA released a newly proposed waters of the United States rule on Tuesday. The 2015 rule remains in effect in half of the country. (Graphic courtesy of EPA)

OMAHA (DTN) -- EPA on Tuesday released a newly proposed waters of the United States, or WOTUS, rule that would erase many of the concerns farmers and ranchers had about the 2015 rule.

Under the proposal, there would be just six categories of jurisdictional waters. That includes 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.

David Ross, EPA's assistant administrator for water, said during a press briefing the EPA was looking for "simplicity, clarity and regulatory certainty" in developing the new rule "recognizing the federal government has limited powers."

"Our goal was to provide as few categories (of WOTUS) as possible," Ross said.

On navigable waters, he said the EPA is not changing what was historically regulated.

When it comes to tributaries, in particular, Ross said the EPA attempts to provide a "straight-forward" definition.

When looking at tributary flows, the new rule uses the term "typical year" to determine if it is a WOTUS. Currently, that term is used in the field by EPA and U.S. Army Corps of Engineers in making Clean Water Act determinations.

Ross said "typical year" refers to the use of precipitation data on a 30-year basis. Though the new rule is designed to be more understandable for regulated parties, he said there still will be a need to make individual WOTUS determinations in the field.

So if a tributary contributes to flow in a larger, navigable water, it is a water of the U.S. The data is updated to reflect changes in precipitation.

"Ditches that operate like the Erie Canal are in," he said. "Lakes and ponds that operate like navigable waters, they are in. Impoundments always have been regulated, no change."

ADJACENT WETLANDS

The 2015 rule used the term "significant nexus" to determine whether tributaries and adjacent wetlands were WOTUS.

That term resulted in even dryland features being considered as jurisdictional if there was evidence of historical water flow. The final 2015 rule set distance requirements for wetlands to be considered jurisdictional. Those distances were not part of the 2015 proposed rule, but rather have become a point of legal contention because they were added in the final rule.

In the new rule, adjacent wetlands that abut or have a direct connection to WOTUS would be regulated.

"Think about periods of river floods every spring," Ross said.

Wetlands that are isolated from navigable waters, he said, would not be regulated.

"If it is not in one of the six categories, it's out," Ross said.

PRIOR CONVERTED CROPLANDS

One of the major agricultural concerns with the 2015 rule was the regulation of groundwater in some situations, prior converted cropland and waste-treatment systems. The new rule exempts those features.

In addition, areas of depression where irrigation water collects would be excluded by the new rule.

EPA Acting Administrator Andrew Wheeler said during a press briefing that the new rule is much needed for landowners.

"The 2015 rule put local land-use decisions in the hands of distant bureaucrats," he said. "The new rule restores the rule of law and would end years of uncertainty. We are clearly distinguishing the difference between state and federal wetlands. This is to help a landowner understand whether they need a permit or not."

Currently, the 2015 rule is in effect in 22 states and on hold in 28 states. Wheeler said the "patchwork" of regulation creates uncertainty for landowners.

"Our new rule will create certainty," he said.

In developing the new rule, Wheeler said EPA took into consideration about 6,000 recommendations from a range of stakeholders.

Once the rule is published in the Federal Register in the coming days, it will launch a 60-day public comment period.

Wheeler said the proposal is the second step to revise the 2015 definition that "expanded Washington's reach into private lands." He said it was "about power over landowners, despite the fact that states have their own laws."

There have been media reports to the effect, Wheeler said, that 60% of streams would lose protection in the new rule.

As a result of a number of court actions in recent years, the 2015 rule remains in effect in 22 states. Currently, pre-2015 regulations are in effect in 28 states. The new proposed rule is expected to go into effect sometime in 2019.

AGRICULTURE SUPPORT

American Farm Bureau Federation President Zippy Duvall said the new rule will "empower" farmers and ranchers to comply with water law.

"This new rule will empower farmers and ranchers to comply with the law, protect our water resources and productively work their land without having to hire an army of lawyers and consultants," he said in a statement. "We want to protect land and water in the communities where we live and work. Clean water is our way of life. Preserving our land and protecting our water means healthy places to live, work and play. We believe this new Clean Water Rule is rooted in common-sense. It will protect our nation's water resources and allow farmers to farm."

U.S. Secretary of Agriculture Sonny Perdue said the new rule should put farmers more at ease.

"When I meet with the men and women of American agriculture, one of their chief concerns is always the overreach of federal regulations," he said. "The WOTUS rule is regularly singled out as particularly egregious, as it impedes the use of their own land and stifles productivity."

U.S. Interior Secretary Ryan Zinke said the new rule exemplifies that decisions about water are best made at the local level.

"This is why we are all sent to Washington, to represent our people," he said during a signing ceremony in Washington, D.C., on Tuesday. "Our government should work for our people and not the other way around."

National Cattleman's Beef Association President Kevin Kester said in a statement the proposed rule is a "fresh start" for ranchers.

"NCBA advocated for a new water rule that is easy to understand and implement," he said. "The administration listened. The proposed water rule provides safeguards to keep our waters clean and clear rules for landowners to follow."

Chuck Conner, president and CEO of the National Council of Farmer Cooperatives said in a statement the new rule pulls back on federal control of farmland.

"The new rule released today rids the WOTUS definition of the broad federal overreach embodied in the rule written by the previous administration," he said. "With this action, the Trump administration is continuing its commitment to defending farmers, ranchers and growers from burdensome and costly regulations that result in little impact on the environment."

Agricultural Retailers Association President and CEO Daren Coppock said the new proposal includes "straightforward new language."

"A clear rule that defines 'navigable waters' in a way that does not require a team of lawyers and consultants to determine if the federal EPA has jurisdiction over land and is within the scope of the Clean Water Act is something all Americans have needed for several decades," he said. "This proposed rule appears to draw bright lines on jurisdiction to remove confusion while protecting clean water."

WOTUS OPPOSITION

The Environmental Working Group criticized the proposal for not taking into account that small streams are sources of drinking water. EWG said small streams provide at least some drinking water for more than 110 million people in 30 states.

"Even a child understands that small streams flow into large streams and lakes -- which provide drinking water for so many Americans," said EWG's Senior Vice President for Agriculture and Natural Resources, Craig Cox. "By removing safeguards and allowing industry to dump pollutants into these water sources, Trump's EPA is ensuring more contamination challenges for utilities and dirtier water for their customers."

Wenonah Hauter, executive director of Food and Water Watch, said in a statement the rule would "gut federal pollution safeguards" for water.

"You need to protect wetlands if you want to have clean water," she said. "This isn't a regulatory rollback, it's a steamroller to the environmental oversight we need to protect our waterways."

Even before the proposal was released, media reports claimed the new rule would cut protections for 60% of the nation's water bodies. In addition, a news report from California said 80% of streams in that state would lose federal protection.

"That is not correct," Wheeler said. "That 60% number is from the previous administration. But maps do not distinguish ephemeral and intermittent waters. There is no map that identifies all the waters of the United States."

"California already has protections in place that are stricter than the federal government's."

Read the proposed rule here: https://www.epa.gov/…

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

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Todd Neeley