John Dillard: WOTUS Tops Regulatory Agenda

John Dillard ( John Dillard )

Trade and market conditions haven’t given farmers much to crow about lately. However, a popular outcome of the Trump administration has been a steady push to peel back regulations that impact farmers and ranchers. There have been some hiccups along the way, but we can expect to see continued progress in the administration’s plan to remove burdens and create certainty for producers.

There will be several significant rule-makings in 2019, including expanding E15 for summer months and defining when poultry and swine contractors can sue integrators. However, the newly proposed definition for “Waters of the U.S.,” known as the WOTUS rule, will be top of mind. The WOTUS rule is significant because it defines the federal government’s jurisdiction under the Clean Water Act. If a stream or wetland isn’t deemed “WOTUS,” then it falls solely under state authority and can’t be regulated by the Environmental Protection Agency (EPA), which oversees rivers, lakes and streams, or the U.S. Army Corps of Engineers, which regulates wetlands.

One of the President Donald Trump’s priorities for rural America has been to repeal and replace the Obama administration’s 2015 WOTUS rule. Despite running into complicated legal issues, EPA and the Corps of Engineers announced their plan for replacing the 2015 WOTUS rule in early December. I expect the Trump administration will have this rule in place by the end of 2019. Here’s what it will and will not regulate:

What’s In?

  • Traditional navigable waters, including oceans, large rivers, lakes and tidal waters.
  • Tributaries with surface water connections to traditional navigable waters with perennial or intermittent flow.
  • Ditches that serve as navigable waters (canals) or that meet the definition of a tributary and have water more often than when it rains.
  • Lakes and ponds that are navigable or contribute perennial or intermittent flow to a navigable water.
  • Impoundments of waters of the U.S.
  • Adjacent wetlands if they have a surface water connection to any of the above-listed bodies.

What’s Off Limits?

  • Ephemeral wetlands and bodies of water that contain water only during or in response to rainfall.
  • Groundwater.
  • Most farm and roadside ditches.
  • Prior converted wetlands (unless they aren’t farmed for five years and return to a wetland state).
  • Stormwater retention ponds and waste treatment systems, including manure lagoons.

There are several major differences in the proposed rule versus the 2015 rule. One of the biggest changes would be the exclusion of ephemeral features, which are bodies of water that only contain water during or in response to precipitation. Ditches and depressions that are normally dry fell under federal jurisdiction in the 2015 rule. The proposed rule also clarifies wetlands are “jurisdictional” only if they have a surface water connection with another body of water deemed WOTUS.

There’s a 100% chance the new rule will get tied up in litigation for some time, so it’s difficult to say when it will be implemented. Although opponents and supporters both frame this as a paring back of federal authority, the rule’s implementation doesn’t mean folks will be free to begin ripping up wetlands or dumping pollutants into waterways. States retain exclusive control over waters that don’t fall under federal jurisdiction and typically require permits for wetland disturbance and other activities.

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