The U.S. EPA and the U.S. Army Corps of Engineers recently closed the public comment period on the Trump administration’s proposed revised rule defining which “waters of the United States” are jurisdictional under the federal Clean Water Act.
This rule-making 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 rule-making 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.
The agencies did a good job with stakeholder outreach during the rule’s development, which included stakeholder sessions prior to the development of the rule itself and listening sessions once the proposed rule was released.
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. Just as importantly, it explains what does not. Establishing a process under the rule-making that provides a framework for the agencies to carry out the requirements under the rule, instead of allowing a case-by-case approach, is likely be a more effective for meeting the requirements of the definition.
The proposed rule would provide a significant level of certainty about what falls under the definition and what does not.
A tighter definition
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, is not WOTUS. Neither are certain ditches, prior converted cropland and artificially irrigated areas that would revert to upland if artificial irrigation were to cease. 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.
Improving and maintaining water quality in this nation can and should be achieved through partnerships carried out at the local, regional, state and federal levels. The proposed rule represents a very good start by the federal government in providing clarity and certainty in defining what waters are truly federal “waters of the U.S.”
At Family Farm Alliance, we stand ready to work with the EPA, the Army Corps of Engineers and other agencies as appropriate in promulgating and finalizing this rule. Most importantly, these partnerships must continue to be nurtured and maintained as we navigate the implementation of a final rule in the months and years ahead.
Keppen is executive director of the Family Farm Alliance.