Amanda Radke | February 8, 2019
On Dec. 28, 2018, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Army Corps) published a revised WOTUS in the Federal Register, which is now open for a 60-day comment period. Photo by Amanda Radke
For farmers and ranchers, the Waters of the United States (WOTUS) has long been a regulatory burden with unclear definitions that made managing waters within the confines of the law a difficult task. For years, the agricultural industry has been vocal about the challenges WOTUS has presented to the nation's landowners, and now producers have a chance to impact a revised version of the rule.
On Dec. 28, 2018, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Army Corps) published a revised WOTUS in the Federal Register, which is now open for a 60-day comment period.
In a press release, Andrew Wheeler, EPA acting administrator, said, "For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways. 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."
R.D. James, assistant secretary of the Army for Civil Works, added, "EPA and the Army together propose this new definition that provides a clear and predictable approach to regulating 'waters of the United States.' We focused on developing an implementable definition that balances local and national interests under the Clean Water Act."
Upon the publication of the proposed revisions, the EPA and Army Corps also announced a public hearing, which would have been held in Kansas City on Jan. 23; however, due to the government shutdown, the hearing was cancelled. At press time, no new date has been announced for a new hearing.
As the comment period gets underway, many agricultural organizations have shared their thoughts about the revised rule.
Speaking at the American Farm Bureau Federation's (AFBF) Annual Convention in New Orleans in early January, AFBF President Zippy Duvall told attendees, "That comment period's not just for us that believe in this new rule. It's for everybody to comment. And let me tell you something, environmentalists hate this new rule. They like the old one. They're going to come out in force and try to defeat this new rule and get it withdrawn."
Duvall said the new WOTUS rule needs to be simple, with clear definitions, where a producer could take the guidelines with him in the truck, ride around his farm and know clearly whether a waterway is a "water of the U.S." or if it's simply a puddle.
The National Cattlemen's Beef Association (NCBA) has also expressed its support of the revised rule.
NCBA President Kevin Kester said, "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. NCBA advocated for a new water rule that is easy to understand and implement. The Administration listened. The proposed water rule provides safeguards to keep our waters clean and clear rules for landowners to follow. We look forward to engaging with the Environmental Protection Agency and Army Corps of Engineers to finalize the rule."
According to the National Law Review, the proposed revisions would provide a clear outline of six categories of waters that would be considered waters of the United States, including: traditional navigable waters, impoundments, tributaries, certain ditches, certain lakes and ponds and adjacent wetlands.
Additionally, the proposed rule would also exclude specific waters from the definition including: waters not otherwise expressly included in the above categories of jurisdictional waters; groundwater; ephemeral surface features and diffuse stormwater run-off; ditches that do not fall into the category of jurisdictional ditches; prior converted cropland; artificially irrigated areas; artificial lakes and ponds constructed in upland that are not otherwise covered by the category of jurisdictional lakes and ponds; water-filled depressions constructed in upland for construction or mining; stormwater control features; wastewater recycling features constructed in upland; and waste treatment systems.
Of these changes, South Dakota Republican Senator John Thune said, "Acting Administrator Wheeler is committed to the president's efforts to provide greater regulatory relief and certainty to the American people, including through the EPA's rewrite of the WOTUS rule and by providing for the year-round sale of E15. He especially recognizes the importance of completing the E15 rule in time for the summer driving season to deliver on the president's commitment to farmers, which will be a great opportunity for South Dakota's agriculture and ethanol industries, as well as consumer choice at the gas pump."
South Dakota Republican Senator Mike Rounds said, "The revised WOTUS rule gives farmers, ranchers and landowners the certainty they need to know when the Clean Water Act applies to them and when it does not. In providing this clarity from the onset, it removes Washington bureaucrats from making ambiguous decisions on land which they aren't familiar with, as landowners are. Additionally, the rule works with landowners to strengthen water safety – rather than saddle them with unnecessary burdens with little to no benefit to the environment and our water supply. It also respects states' rights, recognizing that state and tribal governments have a right to regulate and manage their land and water resources themselves."
He added, "As it was previously written, the WOTUS rule would have been one of the largest federal land grabs in U.S. history. It would have required farmers, ranchers and landowners to spend countless hours filling out burdensome paperwork to get permits from the federal government just to conduct normal agricultural activities or spray for weeds along our county roads. I thank the administration for recognizing the damage the previous administration's WOTUS rule would have on agricultural operations and job creators. I look forward to working with my colleagues to move this commonsense proposal forward."
Despite the favorable support, many environmentalists groups are fighting against these changes.
Notably, the Natural Resources Defense Council released this statement: "The Trump administration will stop at nothing to reward polluting industries and endanger our most treasured resources. Given the problems facing our lakes, streams and wetlands from the beaches of Florida to the drinking water of Toledo, now is the time to strengthen protections for our waterways, not weaken them. This proposal is reckless, and we will fight to ensure it never goes into effect."
And the Center for Biological Diversity called this proposed rule a "sickening gift to polluters" that would result in "more dangerous toxic pollution dumped into waterways across a vast stretch of America."
To date, more than 6,300 comments have been submitted on this rule. Anyone interested in commenting on this revised version of the WOTUS rule can do so here: https://www.regulations.gov/docket?D=EPA-HQ-OW-2017-0480