Photo courtesy of Joe Spendolini Photography
Proposed rule will clarify what are “Waters of the U.S.” in the West
The Family Farm Alliance earlier today sent formal comments to the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) on the Trump Administration’s proposed revised rule defining what “waters of the United States” (or WOTUS) are jurisdictional under the federal Clean Water Act (CWA).
This rulemaking seeks to clarify the long-standing confusion over this definition.
Over the years, such confusion has resulted in lengthy legislative and legal battles, including several cases before the U.S. Supreme Court since the CWA was enacted in the 1970s. The proposed rulemaking effectively lays out the full legal and regulatory history of the tortuous twists and turns that the interpretation of the WOTUS definition has taken over the decades and which has brought us to this point in time.
"The result is a rule which establishes a regulatory structure that moves importantly in the direction of bringing clarity to CWA regulation by establishing what categories meet the definition under WOTUS," said Alliance Executive Director Dan Keppen. "Just as importantly, is explains what does not."
The proposed rule would provide a significant level of certainty with regard to what falls in the definition and what does not.
As the agencies indicated in the proposed rule: “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.”
For those features that are not WOTUS, the proposed rule specifically clarifies that “waters of the United States” do not include features that flow only in response to precipitation. In the West, these would include ephemeral flows, dry washes, arroyos, and similar features. Groundwater, including groundwater drained through subsurface drainage systems are not WOTUS. Neither are certain ditches, prior converted cropland and artificially irrigated areas that would revert to upland if artificial irrigation ceases. In addition, the agencies are proposing to clarify and define the term “prior converted cropland" to improve regulatory predictability and clarity.
These proposed actions are a positive development.
Click here for the PDF version of the Alliance comment letter.