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Inside EPA's WOTUS ruling: Confusion over exclusions

Inside EPA's WOTUS ruling: Confusion over exclusions
Part five: What is, and is not, a "Waters of the United States"?

Read more in this series using the links at the end of the story.

EPA and the Corps of Engineers declare that a variety of waters and features are not "Waters of the United States." They claim many of these exclusions are being established for the first time.

WOTUS designates the following as not being "waters of the United States:"

• Artificially irrigated areas that would revert to dry land should application of irrigation water to that area cease

• Artificial, constructed lakes or ponds create by excavating and/or diking dry land such as farm and stock watering ponds, irrigation ponds, settling basins, log cleaning ponds, cooling ponds, or fields flooded for rice growing

Part five: What is, and is not, a "Waters of the United States"?

• Artificial reflecting pools or swimming pools created by excavating and/or diking dry land

• Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons

• Water-filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand or gravel that fill with water

• Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, not-wetland swales, and lawfully constructed grassed waterways

• Puddles

Many exclusions use the term "dry land." One would think the term "dry land" would be straightforward. It is not.

For EPA, the term "dry land" "…refers to areas of the geographic landscape that are not water features such as streams, rivers, wetlands, lakes, ponds and the like."

Then the agency uses an interesting sentence. "It is important to note that a "water of the United States" is not considered "dry land" just because it lacks water at a given time. Similarly, an area remains "dry land" even if it is wet after a rainfall event."

EPA even admits that it has a tough time defining "dry land." It goes on to say it really doesn't understand dry land when it states, "The agencies concluded that further clarity on this issue can be provided during implementation."

This is clarity?

Farm pond exclusions

Another exclusion of interest to farmers and ranchers is one relating to farm ponds. EPA and the Corps of Engineers write "Artificial lakes and ponds created in dry land that do not connect to jurisdictional waters are covered by this exclusion." Then the agencies turn around after making this statement and declare "Where these ponds do connect and discharge to jurisdictional waters, the agency will evaluate factors such as the potential for introduction of pollutants and coverage under an issued NPDES permit."

So, it appears that if a pond has a spillway, and should it ever overflow towards a stream, then the discharge from the pond will be regulated.

The exclusion, as you can see, is not cut and dry.

The rule does say that all erosional features including gullies and rills, would be excluded from jurisdiction and EPA control. The rule also uses interesting language regarding grassed waterways. "Grassed waterways are lawfully constructed for the purposes of this rule either whether they are on dry land and replace nonjurisdictional erosional features…"

Note the term "lawfully."  Even here EPA states that a grassed waterway may not be totally excluded. It says "…Such conversion (of a grassed waterway) does not sever jurisdiction over the entire length of the tributary above and below the grassed waterway."

This exclusion, even though it appears quite clear, can become complicated.

Not all of the exclusions listed can be addressed given the limitations of space. One exclusion which has generated controversy is the subject of ditches. The rule states it "…excludes all ditches with ephemeral flow that are not excavated in or relocate a tributary. The rule also excludes ditches with intermittent flow that are not a relocated tributary, excavated tributary, or drain wetlands, regardless of whether or not the wetland is a jurisdictional water." Then the agencies conclude this discussion, which appears to be reasonably clear, by saying that these exclusions do not impact the status of the ditch if the ditch is considered a point source.

The subject of much discussion and comment involved exclusion of roadside ditches. The agencies state the following are excluded: "…ditches that are not excavated in or relocate a tributary and ditches that do not drain a wetland." The agencies admit they do not make an explicit exclusion for roadside ditches, but believe they have sufficiently described the characteristics of excluded ditches and hope that the exclusions will apply to ditches adjacent to agricultural lands plus ditches along roadways.

As you can see, the exclusions are clear and not confusing at all!! They have more explosive impact than your July 4th firecrackers. 

Inside EPA's Waters of the U.S. ruling
Part one: What you should know about the EPA ruling
Part two: Understanding 'significant nexus'
Part three: Does this impact private property rights?
Part four: The government's boundless appetite for regulation
Part five: Confusion over exclusions

Note: The five blogs in this series provide only a limited review of the new EPA and Corps rule.

The opinions of Gary Baise are not necessarily those of Farm Futures or the Penton Farm Progress Group.

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