The Environmental Protection Agency gave the agricultural community an impressive gift last week. After years of battling with the formation and aftermath of the existing Waters of the U.S. rule, a replacement rule was proposed. This new rule clearly outlines what is and what isn’t under the jurisdiction of the Clean Water Act.
On Dec. 11, the Environmental Protection Agency (EPA) announced its proposed revised version of the Waters of the U.S. (WOTUS) rule. If enacted, the new WOTUS rule would replace the 2015 WOTUS rule.
In summary, the proposed new WOTUS rule would get rid of the “significant nexus” requirement of the 2015 WOTUS rule, and instead outlines specifically what is and what is not a water of the U.S. under the jurisdiction of the Clean Water Act (CWA).
“For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways,” commented EPA Acting Administrator Andrew Wheeler in the official announcement of the new WOTUS rule.
“Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.”
During the live-streamed announcement of new rule, hosted by the EPA and involving dozens of speakers—members of Congress, state officials, and industry leaders—Zippy Duvall, president of the American Farm Bureau Federation, thanked the administration and President Donald Trump for giving farmers and ranchers “the Christmas present of a lifetime.”
Kevin Kester, president of the National Cattlemen’s Beef Association, was also at the announcement of the new WOTUS rule, which he characterized as a new beginning.
“After years of uncertainty stemming from the 2015 WOTUS rule, the Trump administration’s new water rule represents a fresh start for America’s cattle producers.”
What it says
According to a pre-published version of the proposed new WOTUS rule as put forth by the EPA, the new rule proposes, among other things, six classifications of jurisdictional waters of the U.S. under the jurisdiction of the CWA. These are, with summary descriptions:
• Traditional navigable waters—Large rivers and lakes, tidal waters, and territorial seas used or usable in interstate commerce.
• Tributaries—Rivers and streams that flow directly into traditional navigable waters. These must flow naturally and not simply as a result of rain (i.e., they are not ephemeral). The example of Rock Creek, which feeds to the Potomac River in Washington, D.C., was given in the text.
• Some ditches—Man-made channels used to convey water that meet one of three requirements; they are traditional navigable waters, they meet the definition of a tributary, or they were built adjacent to a wetland. The example of the Erie Canal was given as a jurisdictional ditch in the text. Most ditches relevant to agricultural use were categorically exempted.
• Certain lakes and ponds—Lakes or ponds that either are traditional navigable waters (ex. Great Salt Lake in Utah or Lake Champlain along the Vermont-New York border), perennially contribute to the flow of a traditional navigable water (ex. Lake Pepin in Minnesota or Lake Travis in Texas), or are flooded by a water of the U.S. in a typical year.
• Adjacent wetlands—Wetlands that physically touch other jurisdictional water (ex. Horicon Marsh in Wisconsin), have a surface water connection with, or have a perennial or intermittent flow between, a water of the U.S. The surface water connection provision additionally applies if the connection would exist but is broken by a berm or levee.
• Impoundments—Any impoundment of a waters of the U.S. as previously described.
As mentioned, the proposed new WOTUS rule also lays out what types of waters are categorically excluded from CWA jurisdiction. These are, with summary descriptions:
• Groundwater—This includes groundwater drained through subsurface systems such as tile drain systems.
• Ephemeral water features—Systems or features that contain water only during or in response to rainfall.
• Ditches—All ditches aside from those listed above as jurisdictional would be exempted. This includes agricultural ditches.
• Agricultural land—This is wide-ranging, including usual cropland; “artificially irrigated areas” such as irrigated pastures and fields flooded for rice or cranberry growing; and “prior converted cropland.” Regarding the prior converted cropland, caveats existed for “abandoned lands of this designation.” For this purpose, “abandoned” means not used for or in support of agricultural use in the last five years. Lands left fallow for agricultural or conservation goals or enrolled in long-term conservation programs are not considered abandoned.
• Artificial lakes and ponds—These include man-made features such as farm or stock ponds.
• Stormwater and wastewater features—Features that are excavated or constructed to deal with stormwater, wastewater, and the control and/or treatment of those types of water. This includes settling or cooling ponds, and lagoons used for the purpose of the removal of pollutants.
Litigation and comments
The 2015 WOTUS rule has been embroiled in litigation since it took effect. As a result of various court battles, the country is currently split with 22 states, Washington D.C., and the U.S. territories operating under the 2015 rule while the rule has been stayed by court order in the other 28 states.
Patrick Morrisey, attorney general for West Virginia and one of the attorneys general involved in the litigation against the 2015 WOTUS rule, spoke during the announcement of the new rule. He claimed the 2015 rule violates the CWA, is inconsistent with the Administrative Procedures Act, and is unconstitutional. He also predicted the new rule will come to court.
“The state of West Virginia stands ready, willing, and able to assist this administration to defend it against the inevitable unfounded lawsuits that will likely come our way from today.”
Like the 2015 WOTUS rule, the new WOTUS rule is a proposed rule by the EPA and is open to public comment.
As of press, the proposed rule had not been published in the Federal Register and made available for comment. Once published, however, the proposed rule can be read and commented upon by visiting regulations.gov and searching for the Docket ID EPA-HQ-OW-2018-0149.
Comments will be due 60 days from the date that the proposed rule is published in the Federal Register. This will be around mid- to late February.
Based on the overwhelming interest from stakeholders, the 2015 WOTUS rule received numerous comment period extensions before it was enacted. Litigation against it began on its eventual implementation day. — Kerry Halladay, WLJ editor
