New WOTUS rule alleviates challenges for farmers and ranchers
On Dec. 11, the Environmental Protection Agency (EPA) and Department of the Army proposed a revised definition of waters of the U.S. (WOTUS) that strives to clarify federal authority as it relates to the Clean Water Act.
Bobbie Frank, Wyoming Association of Conservation Districts executive director, quotes the pre-publication version of the rule, saying, “A statement on page 162 of the pre-publication version of the rule says, ‘Today’s proposal more appropriately reflects the scope of the agencies’ authority under the statute, the Constitution, the vital role of the states and Tribes in managing their land and water resources,and the need of the public for predictable, easily implementable regulations.’ I think this sums it up well.”
She continues, “The rule does not incorporate everything we suggested in our comments on the 2015 WOTUS Rule, but where it deviates, the rule also provides a very thorough explanation for why.”
Basis in judicial decision
Frank notes EPA worked deliberately to make changes that were in line with decisions made by the Supreme Court and supported in analysis.
“The elements of this rule are not cherry-picked from one Justice’s opinion or another. They were responsive to the various opinions present,” she comments.
Frank adds, “This is the most comprehensive analysis I’ve seen from EPA in terms of justifying what are and are not waters of the U.S. and tying it back to Supreme Court decisions. This rule is founded in what the courts said and what makes sense hydrologically.”
Inside the rule
Within the rule, Frank notes, generally, federal government jurisdiction over waters will include perennial waters as navigable waters.
“Not all interstate waters are going to be automatically jurisdictional, and the rule has an extensive exclusionary list to help provide clarity,” she explains. “Intermittent waters will be jurisdictional, assuming they connect to a jurisdictional water.”
Further, some ditches and canals are under federal jurisdiction in certain circumstances, and Frank notes that those decisions make sense with the discussion provided.
She explains, “In the West, it’s easy to say that ditches and canals shouldn’t be included, but if we look at waters that are channelized and put in canals in highly populated urban areas, it starts to make sense why they would be included in the rule.”
“Ephemeral waters are jurisdictional only if they clearly connect to a jurisdictional water,” she says, adding that wetlands are also waters of the U.S. if they abut a jurisdictional water. “The presence of water seems to be a primary component of this rule, which is a welcome change.”
Overall, Frank notes the decisions made in the rule are explained in depth to give the reader an understanding of why water bodies were classified in the way they were.
Overall, Frank says the rule is better for Wyoming, though there will likely still be concern with what is and is not included.
Importantly, the rule includes a recognition that, with available technology, maps could be developed to make determining jurisdiction easier.
“With today’s technology, EPA discussed there shouldn’t be any reason why we can’t discuss eventually developing maps so landowners can look at a map and determine if they are going to need a 404 permit or not,” Frank explains. “EPA asked for comments on this section because there would be involvement required from states.”
After the rule is published in the Federal Register, a 60-day comment period will be held to solicit feedback from interested parties.
“It’s important that everyone comments, whether they have concerns or support the rule,” Frank says.
“I think the important part for Wyoming people to recognize this isn’t about water protection. This is about federal jurisdiction of waters,” she comments. “Wyoming has jurisdiction over everything that is surface water, so surface water is not going to go unprotected.”
Saige Albert is managing editor of the Wyoming Livestock Roundup. Send comments on this article to firstname.lastname@example.org.