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Ditches Ditched

Proposed WOTUS revision nears implementation

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Ditches ditched: Proposed WOTUS revision nears implementation

A 2015 “Waters of the United States” ruling by the Obama administration stated that waterways and ditches such as this one that only contain water after rains should be regulated the same as traditional navigable waters. The EPA is in the process of repealing the ruling.

WASHINGTON — A revision of the “waters of the U.S.” regulation that controversially put farm ditches in the same category as rivers is one step closer to reality.

The “Revised Definition of the Waters of the United States” was published in the Federal Register Dec. 28, signaling a 60-day comment period. This follows the initial public comment period which expired Sept. 27 for the repeal of the 2015 rule.

The U.S. Environmental Protection Agency and U.S. Department of the Army signed the proposed rule revision and announced a public hearing will be held in Kansas City, Kansas, on Jan. 23.

The Obama administration’s rule in 2015 extended existing federal protections of large bodies of water to small bodies that flow into them, such as rivers, small waterways and wetlands.

It was issued under the authority of the 1972 Clean Water Act and supported by environmental groups. However, farmers, ranchers and others opposed it as an infringement on their property rights.

Under the agencies’ proposal, traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters and wetlands adjacent to jurisdictional waters would be federally regulated.

It also details what are not “waters of the United States,” such as features that only contain water during or in response to rainfall, for example, ephemeral features; groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; storm water control features; and waste treatment systems.

The agencies believe this proposed definition appropriately identifies waters that should be subject to regulation under the Clean Water Act while respecting the role of states and tribes in managing their own land and water resources.

States and many tribes have existing regulations that apply to waters within their borders, whether or not they are considered “waters of the United States.”

The agencies’ proposal gives states and tribes more flexibility in determining how best to manage their land and water resources while protecting the nation’s navigable waters as intended by Congress when it enacted the Clean Water Act.

“For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals,” said Andrew Wheeler, EPA acting administrator.

“EPA and the Army together propose this new definition that provides a clear and predictable approach to regulating ‘waters of the United States.’ We focused on developing an implementable definition that balances local and national interests under the Clean Water Act,” said R.D. James, assistant secretary of the Army for Civil Works.

For And Against

Proponents and opponents gave their views of the revised WOTUS proposed by the Trump administration.

Here’s what they had to say:

“The fertilizer industry is encouraged by EPA’s and the Department of the Army’s new WOTUS definition, a great first step towards a sustainable national water policy that both protects the environment and facilitates smart economic development. We believe the new plan more clearly defines which waters are subject to federal jurisdiction, which waters are subject to state protection and how the rule will be implemented, clarity that was not found in the 2015 rule.”

“Illinois farmers and landowners want clean water and clear rules. This new common-sense water rule protects water quality and gives them clear rules they can follow. As a farmer, I should be able to look at my land and know what is and is not a Water of the U.S. under the Clean Water Act. The previous regulatory patchwork created uncertainty; this proposal establishes national consistency. Farm Bureau supports common-sense regulations that protect and improve water quality on our nation’s farms and ranches. We applaud the administration for addressing farmers’ concerns regarding regulatory overreach.”

“Wheat growers know the importance of protecting our resources in order to sustain our farming operations and feed a growing world population. However, we need regulatory certainty, so we can remain in compliance with the law. We believe the new proposed rule does just this and reduces ambiguity in the law. We welcome the new proposed rule and plan on submitting comments.”

“Illinois corn farmers need to clearly understand who has jurisdiction over the waters on and around their farms, what standards they should meet regarding water and even what water is to be regulated. Without this crucial information, conveyed in an understandable manner, farmers are unable to appropriately protect their resources. As a leader in water quality and nutrient loss reduction initiatives in the state, ICGA members know, as well as anyone that they play a key role in these processes and we are prepared to do so in voluntary, scientifically-sound applications.”

“This sickening gift to polluters will result in more dangerous toxic pollution dumped into waterways across a vast stretch of America. The Trump administration’s radical proposal would destroy millions of acres of wetlands, pushing imperiled species like steelhead trout closer to extinction.”

“The Trump administration will stop at nothing to reward polluting industries and endanger our most treasured resources. Given the problems facing our lakes, streams and wetlands from the beaches of Florida to the drinking water of Toledo, now is the time to strengthen protections for our waterways, not weaken them. This proposal is reckless, and we will fight to ensure it never goes into effect.”

“This announcement represents a striking roll-back of protections for some of America’s most important bird hotspots. The streams and wetlands that this rule would exclude from the Clean Water Act make up important habitat for desert nesting birds, marsh birds and wading birds. Even if it sometimes dries up or is disconnected from tributaries by land, dikes, or other features, these water bodies are still streams or wetlands as far as birds and other wildlife are concerned.”

Tom C. Doran can be reached at 815-780-7894 or Follow him on Twitter at: @AgNews_Doran.


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