New Clean Water Rule Released

Ag Groups Praise Trump Administration Waters of the US Definition

Chris Clayton
By  Chris Clayton , DTN Ag Policy Editor
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A key component of EPA's new "Navigable Waters Protection Rule" -- replacing the definition of waters of the U.S. -- will come down to defining the difference between an intermittent stream, which is regulated, and an ephemeral stream, which is not. (Progressive Farmer photo by Jeffery Beall)

OMAHA (DTN) -- Agricultural groups cheered and environmental groups howled Thursday as the Trump administration released a new rule defining waters of the U.S.

The pendulum again swung in the way waters will be regulated under the Clean Water Act, as the Environmental Protection Agency and U.S. Army Corps of Engineers released the "Navigable Waters Protection Rule" as a new definition for waters of the U.S., typically known as WOTUS.

Peeling back from the 2015 rule that EPA and the Corps seek to replace, the Navigable Waters Protection Rule scraps terms such as "significant nexus" and spells out four specific categories of waterways that will be regulated by the federal government, leaving oversight for other bodies of water to states and tribes.

"Congress directed the agencies under the Clean Water Act to protect navigable waters," EPA Administrator Andrew Wheeler said. "The Navigable Waters Protection Rule does that by covering these waters and the core tributary systems that provide perennial or intermittent flow into them."

Farm groups were among those that sued to block the Obama-era rules, which they saw as a broad overreach of federal authority that would regulate chemical applications, ephemeral flows, farm ditches and ponds, or require expensive legal fees before landowners could add water on their farms.

With the Trump administration dialing back the federal oversight, farm groups said the new rules would provide more regulatory certainty.

"Farmers and ranchers care about clean water and preserving the land, which are essential to producing healthy food and fiber and ensuring future generations can do the same. That's why we support the new clean water rule," said Zippy Duvall, president of the American Farm Bureau Federation. "It provides clarity and certainty, allowing farmers to understand water regulations without having to hire teams of consultants and lawyers. We appreciate the commitment of the agencies involved and this administration to crafting a new regulation that achieves important regulatory oversight while allowing farmers to farm. Clean water, clear rules."

In his first days after taking office, President Donald Trump ordered EPA and the Army Corps of Engineers to repeal and replace the 2015 rule. Last October, EPA and the Corps finalized the repeal of the 2015 rule. Trump did not preview the new rule when he spoke Sunday to the American Farm Bureau Federation convention, but the president said he remembered signing the order that called for his administration to end the 2015 rule.

"That was a rule that basically took your property away from you," Trump said on Sunday. "I'll never forget: At the White House signing, I had probably 30, 35 people behind me -- farmers and homebuilders and others -- people that haven't cried in many years. People that weren't -- some of them were so tough, they never cried. They didn't cry when they were babies. And they were crying. No, we gave them their life back."

Under the new rule, traditional regulated bodies such as territorial seas and major rivers will fall under federal rules, as well as "perennial and intermittent tributaries" and certain lakes and ponds and impoundments that contribute to the flow of a navigable waterway, along with wetlands "adjacent to jurisdictional waters."

Adjacent wetlands are those touching a traditional navigable water, such as a wetland next to the Mississippi River, or a wetland that may be physically separated by only a single natural feature such as a berm. A wetland behind a levee could fall under regulation, an EPA official said.

Farm and stock watering pounds and artificial lakes will not be regulated, nor will prior converted croplands or wetlands that are not near a jurisdictional water body. But the defining legal issue will be the difference between a federally regulated "intermittent" stream and a state or locally regulated "ephemeral" stream.

An EPA official stated on a press call that the new rule depends on defining the difference between intermittent streams that flow most of the year and ephemeral streams that only flow after snow melt or heavy rains.

Responding to a question, an EPA official said the agency is not concluding that ephemeral streams do not have an impact on downstream water quality.

"What we're saying is we're drawing the regulatory line at ephemeral," the official said.

R.D. James, assistant secretary of the Army for Civil Works, said the new rule eliminated federal overreach that he had seen as both a Missouri farmer and a former member of the Mississippi River Commission.

"In both of those endeavors, I have witnessed how the waters of the United States rule has been put on me as a farmer and put on the Corps of Engineers as regulators in very differing unsubstantiated ways that basically not only hurt the public we serve but also hurt the waters we were supposed to be protecting," James said. "I think this rule clarifies all of that."

While the American Farm Bureau Federation was among the farm groups opposed to the 2015 rule, so were groups such as the National Association of Manufacturers and the National Association of Home Builders. Wheeler was in Las Vegas on Thursday to speak to the homebuilders group about the new rule.

Barbara Glenn, CEO of the National Association of State Departments of Agriculture, stated the group is "thrilled" with the new rule, which Glenn stated would provide certainty to farmers about how their land will be regulated.

"We have been functioning under a tangled patchwork of water regulation for far too long," Glenn said. "As leading state ag officials, NASDA members are responsible for protecting natural resources in conjunction with the Clean Water Act. We look forward to working with the EPA to implement the rule and eliminate ambiguity while safeguarding our nation's water resources."

The National Cattlemen's Beef Association, the Fertilizer Institute, the Agricultural Retailers Association, the National Association of Wheat Growers, the American Soybean Association, the National Corn Growers Association and the National Pork Producers Council also issued statements praising the administration's actions.

The new rule does not mean agriculture will be exempt from all water-quality regulations, but areas such as groundwater and subsurface drainage are not going to fall under the Clean Water Act. There were growing complications over the years because of rulings in Supreme Court cases. The Obama administration rule greatly extended the reach of the Water Quality Act and increased the number of permits farmers needed for an array of typical agricultural practices, said Michael Formica, assistant vice president and general counsel for NPPC.

"So that was a huge overreach, and what was done today was back to clarifying what we would say is the original intent of Congress when they drafted the Clean Water Act," Formica said in an interview with DTN. He added, "In the development of regulations, there is an ebb and flow, and the previous administration swung this pretty far one way, and this is now an attempt to bring it back to where we were. Both sides -- everyone -- wants some clarity about what you can and what you can't do."

Gina McCarthy, a former EPA administrator during the Obama administration who oversaw the writing of the 2015 rule, lashed out at the new rule in her role as president and CEO of the Natural Resources Defense Council.

"This effort neglects established science and poses substantial new risks to people's health and the environment," McCarthy said. "We will do all we can to fight this attack on clean water. We will not let it stand."

The repeal of the 2015 rule remains tied up in federal courts as well. At least 14 states, the city of New York and the District of Columbia have sued EPA and the Corps, arguing the agencies did not follow the Administrative Procedure Act in resetting the waters of the U.S. rule.

The new rule (https://www.epa.gov/…) goes into effect 60 days after it is published in the Federal Register.

Chris Clayton can be reached at Chris.Clayton@dtn.com

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(AG/CZ)

Chris Clayton