Clear as mud? A closer look at EPA's water rule

Clear as mud? A closer look at EPA's water rule

What does the final rule says about tributaries, adjacent waters and 'significant nexus'?

The Environmental Protection Agency continues to try to sell its new definition of waters of the U.S. as one that is workable for farmers, but many questions still remain. 

Ken Kopocis, deputy assistant administrator for EPA's Office of Water, says the agency was careful not to expand the scope of the Clean Water Act into a farmer's field. He said one of the main changes from the proposal to the final rule was that there would be "no new permitting requirements that would not already exist today for what a farmer might be undertaking."

Sen. John Barrasso, R,Wyo., left, stated that the final WOTUS rule is actually worse than the rule EPA had proposed earlier.

He says the rule "doesn't regulate subsurface flows, groundwater, tile drains or change our policy on irrigation or water transfers." It also doesn't interfere with private property rights or address land use, he adds.

The final rule attempts to draw some more definitive lines over what is and isn't covered, something some had criticized following the proposal especially when it comes to what constitutes a ditch, tributary or 'significant nexus.'

Here's what we've gathered so far on those lines:

Tributary: Must show physical features of flowing water – a bed, bank, and ordinary high water mark – to come under EPA's jurisdiction. The rule provides protection for headwaters that have these features and science shows can have a significant connection to downstream waters.

Nearby or adjacent waters: Considered only if within a 100-year floodplain but are no more than 1,500 feet of the ordinary high water mark of jurisdictional water.

Significant nexus: In this final rule, the agencies have identified by rule, five specific types of waters in specific regions that science demonstrates should be subject to a significant nexus analysis.  These five types of waters are Prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands. Kopocis said science says that these types of water features act in combination with each other and can collectively have a significant effect on downstream waters.

Concerns remain

During the markup of a Senate bill to require EPA to go back to the drawing board on the rule, Sen. John Barrasso, R, Wyo., stated that the final rule is actually worse than the earlier proposed rule.

"No matter what concessions the EPA has claimed, they have added new provisions that greatly expand their authority," he said during the markup. "Instead of clarifying the difference between a stream and erosion of the land, the rule defines tributaries to include any place where EPA thinks it sees an ordinary high-water mark; what looks like - not what is - what looks like an ordinary high-water mark."

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Barrasso added that even worse than the tributary definition, the EPA proposes to make these decisions from their desks, using aerial photographs and laser-generated images, claiming a field visit isn't necessary.

This remote sensing or desktop tools is particularly troublesome to the American Farm Bureau Federation, one of the leading opponents of the bill. Ellen Steen, AFBF general counsel, said that this technology could create automatic jurisdiction over certain features and in turn create automatic liability, penalties and legal obligations around these features without the knowledge of the farm owner. Without any fair notice, a landowner may be approached and told that they've been violating the CWA and assessed fines without even knowing they were jurisdictional.

AFBF did a definition comparison of the current rule, proposed rule and final rule. Their analysis found that the final rule expands the definition of tributary, the most common water feature. And ditches are defined as tributaries. Ephemeral ditches that flow only when it rains are excluded only if they were not excavated in a tributary and are not "relocated tributaries." But because the exclusion is tied to determining the existence of historical ephemeral tributaries, AFBF said it will be impossible for landowners to know which ditches are excluded.

AFBF said the final rule states there is no need for the presence of an actual bed, bank or ordinary high water mark, but only the "presence of physical indicators of a bed and banks and ordinary high water mark," which could be found by someone sitting at a desk without ever visiting the farm. 

Bob Stallman, AFBF president, says he can remain in limbo and continue with farming practices on his rice and cattle farm as normal and just hope EPA or some citizen group doesn't try to challenge his actions. Or he can go to the EPA and spend $40,000 at a minimum to seek a permit to see if his land is 'waters of the U.S.'

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