The twice-extended public comment period for the Environmental Protection Agency (EPA) and Army Corps of Engineers’ (Corps) proposed rule defining “waters of the United States” under the Clean Water Act came to a close last Friday, November 14.  NSAC contributed to the dialogue around the proposed rule by submitting comments seeking greater clarity for agricultural producers, improved stakeholder communication, and additional resources for effective implementation.

Background

Since the passage of the Clean Water Act (CWA) in the early 1970s, multiple Supreme Court cases have generated confusion around what constitutes a “water of the U.S.” and thus warrants protection under the Act.  Before the proposed rule, the EPA’s regulations defined waters of the U.S. as:

• Traditionally navigable waters
• Interstate waters; and
• All other waters that could affect interstate or foreign commerce, impoundments of waters of the U.S., tributaries, the territorial seas, and adjacent wetlands.

The WOTUS rule, however, removes impoundments, tributaries, the territorial seas, and adjacent wetlands from the “other waters” category, instead declaring that these waters have a significant nexus to traditional jurisdictional waters and are, therefore, automatically jurisdictional themselves.  For more information about the proposed rule, read NSAC’s WOTUS blog post and Q&A.

The proposed rule sparked strong reactions from agricultural, manufacturing, and development interests.  While environmental groups appreciated the rule’s emphasis on wetland protection, some in the agricultural community vilified the rule as a federal regulatory overreach.  The American Farm Bureau Federation launched a national “Ditch the Rule” campaign and, in September, the U.S. House of Representatives voted 262-152 to stop the WOTUS rulemaking from going forward.  The Senate has yet to take up the bill.

Having followed the issue for years, NSAC submitted comments in July on the simultaneously-issued Interpretive Rule, which outlined 56 conservation practices that would be exempt under the proposed rule.  Despite strong opposition to some elements of the Interpretive Rule and despite some criticisms of the proposed rule, NSAC has remained a strong advocate for the rulemaking process, repeatedly expressing disapproval at organizational and Congressional efforts to intervene to short circuit the normal rulemaking and public comment process.

Our Comments

NSAC’s comments on the WOTUS proposed rule focused largely on encouraging the agencies to put forth clearer definitions for confusing or imprecise terms.  The agencies’ preamble to the rule provides several definitions and insights that are not codified in the proposed rule itself.  Specifically, NSAC’s comments addressed the following:

• The agencies include “wetlands” as potential jurisdictional tributaries, arguing that wetlands can contribute flow to jurisdictional waters.  NSAC recommended that wetlands be removed from the definition of “tributary,” as this introduced greater confusion than necessary.  Wetlands could still be jurisdictional as adjacent waters or “other waters” under the proposed rule.
• One criterion for determining whether or not a water is “adjacent” under the proposed rule is the presence of a shallow subsurface hydrological connection to a jurisdictional water.  NSAC recommended that the agencies present a more concrete definition of “shallow subsurface hydrological connection.” As currently written, farmers, developers, even hydrologists will be playing a guessing game when it comes to determining what constitutes a valid, subsurface connection under the rule.
• Some in the agricultural community have expressed concern that the rule paves the way for regulation of drainage and irrigation ditches.  While the rule explicitly exempts upland ditches with less than perennial flow, as well as ditches that do not contribute flow to a jurisdictional water, it fails to define several key terms.  We recommended greater clarity around the terms “ditch,” “upland,” and “perennial flow” in an effort to provide clear standards and subdue concerns regarding future implementation.

Along with key definitional recommendations, NSAC provided the following additional suggestions to the agencies:

•  The agricultural community will likely turn to USDA-based agencies, like the Natural Resources Conservation Service (NRCS), for technical assistance and education surrounding implementation of the WOTUS rule.  Given this anticipated strain on NRCS’ limited resources, NSAC recommended the EPA, Corps, and NRCS work together to secure greater funding for NRCS to provide technical assistance regarding the WOTUS rule.  We introduced this idea in a letter to Office of Management and Budget Director Shaun Donovan sent on October 29, and included a copy of the letter as an appendix in our comments.
• Stakeholders have scrutinized the EPA’s communications efforts around the WOTUS rule.  NSAC applauded efforts by EPA Administrator Gina McCarthy to visit rural farms in Missouri, and recommended more outreach in the form of face-to-face meetings with EPA and Corps officials as well has more specific case studies providing insight to the rule’s implementation.
• Finally, NSAC recommended the agencies target outreach efforts to beginning farmers who may need additional resources or assistance to comply with the rule.

The fate of the WOTUS rule is less than certain, what with continuing calls from some in Congress to stop the process even while the rulemaking process is still playing out.  NSAC is proud to have substantively contributed to the WOTUS dialogue, and remains supportive of a workable rule that provides greater clarity for farmers while protecting our nation’s water resources.  We believe the rule needs more work, but that reasonable solutions are well within reach.  It would be very unfortunate to undo this process, returning to regulatory uncertainty and endless litigation.