Final WOTUS Rule Released

Wed. May 27, 2015 11:25 AM

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- The final waters of the United States rule announced Wednesday was touted by federal officials as a scaled-down version of a proposed rule that drew opposition from agriculture and many other industry groups across the country as being too far-reaching and seemingly all inclusive of nearly every drop of water.

Three Obama administration officials told reporters Wednesday they read and responded to the concerns levied by some 1.2 million commenters on the rule.

Their message: Farmers have nothing to worry about with the new rule if they're not already required to have permits through the Clean Water Act.

Though farmers and landowners in the Prairie Pothole region of Iowa, Minnesota and South Dakota repeatedly have said the proposed rule provided no certainty about which waters were jurisdictional, the final rule still provides no certainty.

EPA Administrator Gina McCarthy said the final rule singled out those land/water features considered to be "unique" including the Prairie Potholes and coastal waters in Texas, as still subject to case-by-case Clean Water Act determinations.

In addition, the final rule made an attempt to better define tributaries, she said, and to clear up confusion about category of "other" waters that has caused concern across the country. In addition, the final rule attempts to more clearly identify how ditches can be considered waters of the United States.

"We defined tributary much more clearly," McCarthy said. "We used science to identify physical features required and provide certainty on how safeguards are extended to waters. There is no open-ended 'other' waters category to make people think EPA and the Army Corps are looking at other waters. Now only those ditches that are covered are those that are tributaries. No ephemeral ditches. We've done a very good job taking a look at comments. We learned people had concerns about what we didn't say. That's no longer the case. We are not doing anything to add legal or permitting barriers to ag."

She said the final rule defines tributaries that would be "significant contributors" to downstream water quality.

"We have identified features," McCarthy said. "We have established boundaries. We have taken a look at unique features. Based on comments unique features are important to look at on a case-by-case basis. People will be able to read this rule. It is fairly short. I think it's going to be very clear to folks who don't generally read rules. We will work with farmers on this."

AG CONCERNS

Bob Stallman, president of the American Farm Bureau Federation, said in a statement that the group will be reading the final rule in detail to see if agriculture concerns raised were addressed.

"Based on EPA's aggressive advocacy campaign in support of its original proposed rule -- and the agency's numerous misstatements about the content and impact of that proposal -- we find little comfort in the agency's assurances that our concerns have been addressed in any meaningful way," he said.

"The process used to produce this rule was flawed. The EPA's proposal transgressed clear legal boundaries set for it by Congress and the courts and dealt more with regulating land use than protecting our nation's valuable water resources. EPA's decision to mount an aggressive advocacy campaign during the comment period has tainted what should have been an open and thoughtful deliberative process.

"While we know that farmers and ranchers were dedicated to calling for substantial changes to the rule, we have serious concerns about whether their comments were given full consideration."

Many agricultural commodity groups likewise commented in press statements immediately following the EPA announcement that they were withholding final judgment pending thorough review of the rules. Others, including the National Cattlemen's Beef Association, were critical of both the process and the rules.

"Under the guise of clarifying the Clean Water Act, the EPA and the Army Corps added ambiguous language to the law that leaves regulation up to the subjectivity of individual regulators across the country," NCBA said in a statement.

During the rulemaking process EPA estimated the proposed rule could increase the number of waters brought into jurisdiction by about 3%. On Wednesday, McCarthy said the rule could lead to an increase in the number of waters covered by 3% or "higher."

FINAL RULE

The final rule states, "Previous definitions of 'waters of the United States' regulated all tributaries without qualification. This final rule more precisely defines 'tributaries' as waters that are characterized by the presence of physical indicators of flow -- bed and banks and ordinary high water mark -- and that contribute flow directly or indirectly to a traditional navigable water, an interstate water, or the territorial seas. The rule concludes that such tributaries are 'waters of the United States.'"

The final rule also addresses the question of what exactly are adjacent waters for the purpose of establishing a "significant nexus" to larger water bodies.

"The agencies determined that 'adjacent waters,' as defined in the rule, have a significant nexus to traditional navigable waters, interstate waters, and the territorial seas based upon their hydrological and ecological connections to, and interactions with, those waters. Under this final rule, 'adjacent' means bordering, contiguous, or neighboring, including waters separated from other 'waters of the United States' by constructed dikes or barriers, natural river berms, beach dunes and the like," the final rule reads.

"Further, waters that connect segments of, or are at the head of, a stream or river are 'adjacent' to that stream or river. 'Adjacent waters' include wetlands, ponds, lakes, oxbows, impoundments, and similar water features. However, it is important to note that 'adjacent waters' do not include waters that are subject to established normal farming, silviculture, and ranching activities as those terms are used in Section 404(f) of the CWA."

EXCLUSIONS IDENTIFIED

Concerns have been raised as to how far EPA's regulatory reach can go in the new rule. The new rule specifically identifies a number of exclusions to the Clean Water Act.

Those include prior converted cropland and waste treatment systems; waters and features previously identified as generally exempt including certain ditches not located in or drain wetlands; certain ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary; and ditches with intermittent flow that are not a relocated tributary, or excavated in a tributary, or drain wetlands.

In addition, the rule also excludes "groundwater and erosional features, as well as exclusions for some waters that were identified in public comments as possibly being found jurisdictional under proposed rule language where this was never the agencies' intent, such as storm water control features constructed to convey, treat, or store storm water, and cooling ponds that are created in dry land. These exclusions reflect the agencies' current practice, and their inclusion in the rule as specifically excluded furthers the agencies' goal of providing greater clarity over what waters are and are not protected under the CWA."

FLOODPLAINS

The final rule identifies three circumstances where waters would be "neighboring," making them waters of the United States.

"Waters located in whole or in part within 100 feet of the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, an impoundment of a jurisdictional water, or a tributary, as defined in the rule," the rule reads.

"Waters located in whole or in part in the 100-year floodplain and that are within 1,500 feet of the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, an impoundment, or a tributary, as defined in the rule ('floodplain waters').

"Waters located in whole or in part within 1,500 feet of the high tide line of a traditional navigable water or the territorial seas and waters located within 1,500 feet of the ordinary high water mark of the Great Lakes."

Assistant Secretary for the Army Civil Works Jo-Ellen Darcy said the new rule makes it clear that tributaries have to show "physical signs of flowing water" to be jurisdictional.

"Erosional features such as gullies and rills are not covered," she said. "Only ditches that act as tributaries are covered."

McCarthy said farmers will not be required to obtain Clean Water Act permits if they don't already have them.

"The rule does not add any new requirements for agriculture," she said. "It does not interfere with private property rights. It does not cover tile drains, irrigation or water transfers. It specifically recognizes the crucial role farmers play. Water-filled depressions from construction are not covered. All agriculture exemptions stay in place."

White House Senior Adviser Brian Deese said the new rule is "based on common sense"

"The rule is about certainty," he said. "The status quo is ripe with confusion. It does it in a way without getting in the way of farmers or forestry. The rule is about clarity. We're going to work to try to be as clear as possible about how this rule is implemented. The only people to oppose rule are polluters who are threatened by the rule."

Read the final rule here: http://tinyurl.com/…

Todd Neeley can be contacted at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

(GH/AG)

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