What the Alliance likes about the proposed ruleIn the preamble to the proposed rule, the agencies (EPA and the Army Corps of Engineers) state that they intend to continue the longstanding approach of not considering certain ditches, swales, gullies and erosional features as Waters of the United States. Specifically, the agencies state: “In practice, the agencies have not generally asserted jurisdiction over such waters and would continue to implement the proposed rule consistent with this practice.”
“Historically, irrigation systems have not been considered WOTUS,” Mr. Semanko testified today. “This is an important clarification for irrigators and one that we welcome.”
The preamble also makes clear that the proposed rule does not alter the exemptions for activities involving ditches under Section 404(f) of the Clean Water Act.
EPA and the Corps, in July 2007 issued Regulatory Guidance Letter (RGL) 07-02 that provides a national approach for conducting exemption determinations for the construction and maintenance of irrigation ditches and the maintenance of drainage ditches. Section 404(f) specifically exempts from CWA permitting requirements discharges of dredged or fill material into “waters of the U.S.” associated with the construction and maintenance of irrigation ditches and maintenance of drainage ditches.
“The irrigation community has come to rely upon RGL 07-02, as subsequently replaced by interpretative guidance, and welcomes the clarification in the preamble that this important guidance will remain in place, unaffected by the proposed rule,” said Mr. Semanko.
What the Alliance requests
The proposed rule is meant to provide a return to the “familiar regime” of the pre-2015 rule, which was adopted in 1986. This would suggest that a clean repeal of the Navigable Water Protection Rule – and a return to the pre-2015 rule – is in order. However, the proposed rule would actually modify the pre-2015 rule.
“This is not a return to the old, familiar regime; it is a different rule altogether,” Mr. Semanko testified. “Consideration of such changes should be reserved until the next rulemaking, when the “durable definition” of WOTUS is proposed and made available for public comment.”
The Alliance does not believe making changes to the pre-2015 rule now is necessary. The agencies know how to implement the 1986 rule, as informed by caselaw and the 2008 Clean Water Act WOTUS guidance – they have been doing so for the past few months.
“We urge the agencies to first conduct the Regional Roundtables, consider public and stakeholder feedback, and then consider potential changes to the 1986 rule as part of developing a durable definition of WOTUS,” Mr. Semanko testified. “It is premature – and prejudicial – to start making substantive changes to the 1986 rule during this rulemaking.”
For the irrigation community, certainty in the definition of WOTUS is critical. The Family Farm Alliance looks forward to participating in the additional, upcoming rulemaking and contributing toward the agencies’ stated goal of developing a durable definition of WOTUS.
Family Farm Alliance General Counsel Norm Semanko (IDAHO) testified earlier today at a public hearing hosted by the U.S. Environmental Protection Agency (EPA) on the Biden Administration’s proposal to redefine what constitutes “Waters of the U.S.” under the federal Clean Water Act.