Today, the EPA along with the U.S. Army Corps of Engineers are proposing a clear, understandable, and implementable definition of the Waters of the United States (WOTUS) rule that clarifies federal authority under the Clean Water Act. Unlike the Obama administration’s 2015 definition of “waters of the United States,” today’s proposal contains a straightforward definition that would result in significant cost savings, protect the nation’s navigable waters, help sustain economic growth, and reduce barriers to business development.
The EPA Acting Administrator Andrew Wheeler 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.”
The agencies’ proposed rule would provide clarity, predictability, and consistency so that the regulated community can easily understand where the Clean Water Act applies — and where it does not. Under the agencies’ proposal, traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated. It also details what are not “waters of the United States,” such as features that only contain water during or in response to rainfall (e.g., ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; storm water control features; and waste treatment systems.
Ag Secretary Sonny Perdue was thrilled about today’s statement from the EPA. “When I meet with the men and women of American agriculture, one of their chief concerns is always the overreach of federal regulations. The WOTUS rule is regularly singled out as particularly egregious, as it impedes the use of their own land and stifles productivity. Farmers and ranchers are exceptional stewards of the environment, and states have their own standards as well. This welcome action from the EPA and Army Corps will help bring clarity to Clean Water Act regulations and help farmers know where federal jurisdiction begins and ends.”
The new rule replaces the 2015 WOTUS rule that would have increased regulatory burdens and costs for farmers. National Corn Growers Association President Lynn Chrisp said, “Farmers rely on clean water and are committed to protecting our environment and the communities where we live and work. With a clear understanding of what is and is not jurisdictional under the Clean Water Act, farmers can implement stewardship practices such as grass waterways and buffer strips without the burden of bureaucratic red tape or the fear of legal action.”
American Farm Bureau Federation President Zippy Duvall applauded the new ruling saying, “Farmers and ranchers work every day to protect our nation’s waterways and drinking water. For more than five years we have advocated for a new water rule that protects clean water and provides clear rules for people and communities to follow. This new rule will empower farmers and ranchers to comply with the law, protect our water resources and productively work their land without having to hire an army of lawyers and consultants.
Duvall continued, “We want to protect land and water in the communities where we live and work. Clean water is our way of life. Preserving our land and protecting our water means healthy places to live, work and play. We believe this new Clean Water Rule is rooted in common-sense. It will protect our nation’s water resources and allow farmers to farm.”
With over 6,000 pre-proposal recommendations, the agricultural community had a lot to say about the WOTUS. The agencies will take comment on the proposal for 60 days after publication in the Federal Register. EPA and the Army will also hold an informational webcast on January 10, 2019, and will host a listening session on the proposed rule in Kansas City, KS, on January 23, 2019.