EPA Releases Waters of the U.S. Rule

EPA Releases Waters of the U.S. Rule

The Waters of the U.S. (WOTUS) Rule was finalized by EPA and Army Corps on May 27, 2015.  MSGA is currently reviewing the rule, but initially, it appears few changes have been made from the proposed rule. In a number of cases, the rule represents an expansion of federal jurisdiction beyond current practices and the limitations affirmed by the Supreme Court.

The agencies received over 1 million comments on the WOTUS proposal before they closed the second comment period on November 14, 2014. MSGA, working with NCBA, also viewed the new rule as a:

• Increase in jurisdiction over ephemeral streams
• New expansive jurisdiction over adjacent waters
• Many ditches subject to federal regulation

MSGA provided extensive comments in opposition to the proposed rule, including:

1. Removal of intermittent and ephemeral non-navigable streams from the rule.
2. Remove the inclusion of ditches in the definition of tributary.
3. Remove the provision that would make isolated wetlands, ponds and other open waters per se jurisdictional if they are located within a riparian area or floodplain.
4. Withdraw the Interpretive Rule that limits the Sec. 404 “normal farming, silviculture and ranching” exemption to 56 NRCS practices, which limits landowner protections.

The Agencies have estimated the rule will cost as much as $306 million annually. MSGA is currently working with others to consider possible avenues to rewrite or halt implementation of the rule. Due to the concern over the rule, there are currently two bills in Congress to halt the proposed WOTUS Rule.

The first is the Regulatory Integrity Protection Act (H.R. 1732). This bill calls for the EPA to withdraw their rule and has passed the full House by a bi-partisan vote of 261-155.

In Senate, the Federal Water Quality Protection Act (S. 1140) was introduced to Environment and Public Works Committee. This bill would also require the EPA and Army Corps to withdraw the WOTUS proposal and develop a new proposal that would reach consensus with state and local governments on defining “Waters of the United States.” Senator Steve Daines is cosponsor of S. 1140 legislation.