The Environmental Protection Agency’s (EPA) Farm, Ranch and Rural Communities Committee (FRRCC) recently released a 46-page report detailing recommendations for waters of the U.S. (WOTUS) rules, among other environmental issues. The WOTUS recommendations have the support of the National Cattlemen’s Beef Association (NCBA), which says EPA should listen to the committee’s recommendation that “farmers and ranchers need clear rules and regulatory certainty to be successful.”
“The FRRCC represents a diverse group of stakeholders, including academia, industry, nongovernmental organizations, and state, local and Tribal governments,” said Scott Yager, NCBA chief environmental counsel. “NCBA strongly supports the committee’s recommendation to develop a clear and limited WOTUS definition and protect key exemptions for common agricultural features.”
In its report, FRRCC says EPA’s mission to protect human health and the environment aligns perfectly with the mission of American farmers and ranchers, and they must maintain a working relationship to achieve their respective missions. The committee provides policy advice, information and recommendations on environmental issues that are of importance to ag and rural communities to the EPA administrator.
Regarding WOTUS, the committee recommended five specific points:
• Adhere to the Clean Water Act (CWA) and relevant Supreme Court precedent.
• Define WOTUS using clear terms that are easy to interpret and apply.
• Define jurisdictional features.
• Retain exclusions that are critical to ag and rural communities, and recognize regional differences.
• Reconsider the roundtable process.
CWA, Supreme Court
FRRCC said there are important Supreme Court cases regarding the CWA, which reinforce the fact that Congress placed limits on the scope of federal jurisdiction by using the term “navigable” and “by recognizing, preserving and protecting the primary responsibility and rights of states over land and water use and development.”
The committee wrote that any definition of WOTUS should be guided by the cases and should be limited to traditional navigable waters and territorial seas. In addition, jurisdiction over non-navigable tributaries should be limited to those with clearly discernible physical features, as well as consistent flow into traditionally navigable waters.
Defining WOTUS
FRRCC wrote the most important aspect of any WOTUS definition is that it should be clearly understood by producers and leaders of rural communities. “It is necessary that a new WOTUS rule avoid vague terminology that both landowners and regulators cannot apply without engaging in burdensome analyses,” the report read.
The committee also recommended online interactive tools to map jurisdictional waters to serve as an informal guide to interested parties. However, FRRCC wrote that agency determinations should be made in the field to ensure an accurate determination and adequate due process.
Define jurisdictional features
The committee also recommended defining jurisdictional features with an eye toward allowing farmers, ranchers and rural communities the necessary flexibility to implement environmentally beneficial projects that do not adversely affect the function or water quality of WOTUS.
Retain exclusions
FRRCC wrote that EPA should retain exclusions that are critical to producers and rural communities, and waters that do not fit any of the jurisdictional categories in the new WOTUS rule should not be jurisdictional. However, the committee noted there is potential for misinterpretation, so exclusions should be well-defined and clear.
FRRCC advised the following exemptions as the most important:
• Prior converted cropland — Prior converted cropland no longer exhibits defining characteristics of wetland and should not be considered WOTUS.
• Groundwater — EPA should continue to exclude groundwater in the new regulations.
• Ditches and other isolated features — These are commonly found on operations and are used to utilize water for agricultural use, and producers should not have the burden of proving their historical status.
• Storm water detention, tail water recovery — These and other environmentally beneficial practices should not be considered WOTUS.
• Wastewater — Reclaimed water or recycle water systems should not be considered WOTUS.
Roundtable process
Finally, the committee recommends EPA to reconsider the roundtable process. The report said the agencies should retain previous public input processes to hear from the public to include all stakeholders, and all parties should be allowed to provide input and be heard equally.
“The FRRCC also wants to emphasize the importance of ensuring USDA is in lockstep with the regulatory process surrounding WOTUS,” the committee concluded.
In addition to WOTUS recommendations, the report also provided recommendations regarding an ecosystems management system, pesticide recommendations and food loss and food waste recommendations. To view the report in its entirety, visit www.epa.gov/faca/frrcc. — Anna Miller, WLJ managing editor
