Ag Policy Blog

Inhofe Questions WOTUS Provision

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Sen. James Inhofe, R-Okla., makes the case Washington, D.C.'s entire sewer system could be considered waters of the United States based on the language of the new rule set to be implemented Aug. 28, in a letter Thursday to Jo Ellen Darcy, assistant secretary of the Army and Ken Kopocis, deputy assistant administrator of the office of water at the U.S. Environmental Protection Agency.

In particular, Inhofe, chairman of the Committee on Environment and Public Works, questions how EPA can regulate historical streams -- even those that were replaced by public sewer systems long before the Clean Water Act became law. That would include D.C.'s extensive sewer system that has been in place for many decades.

"According to the questions and answers on EPA's website: 'Dry land is those areas that are not water features, such as streams, wetlands, lakes, ponds, and the like,'" he writes. "According to the preamble of the final rule, the agencies consider an area to be a 'water feature' based on the historic, as well as current, presence of water.

"The preamble further states: 'Agency staff can determine historical presence of tributaries using a variety of resources, such as historical maps, historic aerial photographs, local surface water management plans, street maintenance data, wetlands and conservation programs and plans, as well as functional assessments and monitoring efforts'"

The final rule's definition of tributary also includes waters that flow through man-made features such as waste treatment systems, pipes, dams, culverts and bridges.

Inhofe goes on to describe D.C.'s extensive underground canal system saying, "Based on this historic information, and the language from the preamble to the final rule, is the D.C. sewer system below Constitution Avenue a buried stream that is considered a water of the United States? Is the storm water collection system beneath Constitution Avenue a water of the United States?"

One of the major concerns raised by agriculture and other industry groups about the final rule is that EPA gave itself the authority to examine historical records including satellite data and other sources, to determine if current dryland features once contained waters of the United States.

"Please explain to me why the proposed rule would have provided exclusions from all parts of the waters of the United States definition, but under the final rule the exclusions do not apply to navigable or interstate waters. Do the Army and EPA claim the authority to regulate ditches that meet the terms of an exemption but cross state lines, such as ditches along interstate highways? Do the Army and EPA intend to regulate artificial, constructed lakes and ponds created in dry land if they can float a kayak?

"These questions demonstrate the grave concerns that many local governments have regarding your final rule, which I share," Inhofe writes.

Read the full letter here,…

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