EPA releases final Waters of the U.S. rule

EPA releases final Waters of the U.S. rule

Rule completes move through public comment and review process in a little more than a year; ag groups aren't convinced it addresses farmer concerns

The U.S. Army Corps of Engineers and EPA on Wednesday released the final Waters of the U.S. rule, a regulation that defines which waters can be regulated under the Clean Water Act.

Related: Waters of the U.S. proposal goes to White House, some details released

The WOTUS rule process was closely watched by agriculture groups, many of which feared it would mean additional regulations on farming and ranching activities on private lands.

EPA's Gina McCarthy discusses the Waters of the U.S. proposal or 'Clean Water Rule' earlier this year. (File-PJ Griekspoor)

At nearly 300 pages, the final rule still pledges to avoid regulation of most ditches, groundwater or require more permits for agriculture activities. But groups Wednesday were ready with statements of concern and plans to review the full rule to determine if key issues raised by farmers and ranchers were addressed after the final public comment period was closed.

The American Farm Bureau said based on EPA’s previous statements about the WOTUS proposal, the agency's assurances that farmer concerns have been addressed provides "little comfort."

Related: EPA Review Board Stands By Waters of the U.S. Proposal

"The process used to produce this rule was flawed," AFBF President Bob Stallman said in a press statement. "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."

In an announcement regarding the final rule's release, EPA said it sets "physical and measurable" boundaries for CWA jurisdiction of waters near rivers and lakes as well as their tributaries. The rule also "limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream," EPA said, "so ditches that are not constructed in streams and that flow only when it rains are not covered."


EPA Administrator Gina McCarthy had previously said that the rule also would clarify the term "upland ditches" to specify only ditches that function as tributaries. In a press call Wednesday afternoon, she reiterated that change.

"Unless you act like a tributary and have the features of a tributary you are simply not jurisdictional under the CWA," McCarthy said. On ditches, which have been a concern for ag groups, McCarthy said ephemeral ditches that are not an excavated tributary or relocated tributary are excluded.

The EPA's release Wednesday also said the rule "does not make changes to current policies on irrigation or water transfers or apply to erosion in a field … [the rule] addresses the pollution and destruction of waterways – not land use or private property rights."

But farm groups and some legislators are still concerned with that assertion. The National Cattlemen's Beef Association suggested the new language "leaves regulation up to the subjectivity of individual regulators across the country."

Maps discovered by the House Committee on Science, Space, and Technology late last summer underscored the breadth of the WOTUS regulation, NCBA said. At the time, the Committee leader said the maps detailed plans to "control a huge amount of private property across the country."

Attempts to clear the rule
Following extensive hearings, including those by the House Committee on Agriculture and Science, Space and Technology, several legislative attempts have been made to eliminate the rule. Some attempts include provisions to re-start the rule development and review process, citing serious concerns from ag groups, manufacturing and construction sectors.

The most recent came in May, as Senators introduced a bipartisan bill to require the EPA to withdraw the rule and develop a new proposed rule that considers all of the comments received on the original proposal.

The House Transportation and Infrastructure Committee voted 36-22 to pass a similar provision in April.

While these measures were being discussed, legislators said EPA's quick timetable for releasing a final rule – the rule was first proposed about a year ago – indicated that not all concerns had been properly vetted and addressed.

NCBA reiterated this point Wednesday. "By law, the EPA must read and consider all comments submitted on the proposed rule, but only six months after receiving over one million public comments on the proposal, EPA has finalized the rule," the group said.

The group's president, Philip Ellis, said the tight timetable is an indication that there is "no intention of considering the concerns of those most impacted by the rule."


Legislators were, however, successful in withdrawing the Waters of the U.S. Interpretive Rule, which was released at the same time as the full WOTUS rule, but was an independent measure that took immediate effect last year.

The IR outlined which 56 "normal farming and ranching" exemptions under the regulations of the Natural Resources Conservation Service would also provide farmers an exemption from Clean Water Act permitting.

Opponents of the IR said using these practices as CWA exemptions would alter farmer-NRCS interaction and discourage environmental best practices.

Still more calls for a new rule
Ag groups Wednesday indicated that the new rule would be reviewed for certainty that all farmer and rancher concerns were addressed. Some, however, advocated for a fully revised rule.

"We cannot comment on the specifics of the revised rule until we have had a chance to fully review it. We especially want to ensure that the broad promises made in the EPA press release are carried out in the text of this comprehensive rule," National Corn Growers Association President Chip Bowling said in a statement.

Related: Top 5 Waters of the U.S. Headlines

In a similar response, the American Soybean Association said it would consult with growers before issuing full review of the rule. Even so, the group requested an opportunity to provide EPA official comments on the final version.

NCBA was seemingly less optimistic, ultimately asking that the full rule be set aside. "The final rule poses an unnecessary threat to private property owners and cattle producers across the country," NCBA's statement noted. "The only fix is to start over with all stakeholders’ input and direction from Congress."

The new rule will be effective 60 days after publication in the Federal Register.

Additional Farm Progress Coverage: Missouri cattlemen outraged over EPA, WOTUS land grab

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