Before EPA and the U.S. Army Corps of Engineers finalize the waters of the United States, or WOTUS, rule they will have a number of concerns to address, according to a number of public comments filed by agriculture interest groups.
The agencies received hundreds of thousands of public comments on regulations.gov prior to the April 15 deadline. Most of the members of ag and rural groups who commented said they support the rule but are calling for changes. The agencies are on track to finalize the rule later this year.
Generally, the rule has been lauded by ag interests because it narrows federal jurisdiction of waters and has clarified a number of concerns the industry had about the 2015 rule.
In Iowa, where farmers have installed a wide network of drainage tile systems to drain off otherwise flooded fields, the state’s leading drainage association said the proposal creates a number of problems. There are 9 million acres of land in the state being subject to draining, according to estimates.
“With respect, the drainage ditches specifically, the proposed rule continues to lack necessary clarity and will lead to increased costs to drainage districts and thus landowners in those districts,” the Iowa Drainage District Association said in comments. “Ditches are listed as a category of WOTUS and as an exclusion. This is unnecessarily confusing.
“The extensive network of artificial tiling that exists in Iowa is designed to drain excess precipitation and subsurface waters in order to maintain healthy soils and avoid extended periods when the groundwater table would otherwise be elevated. This results in ditches that flow both perennially or intermittently due to tile drainage. The proposed rule would force us into a regulatory never-never land where decisions on improving or maintaining a ditch are potentially going to have to be evaluated on a case-by-case basis.”
The group said the rule would result in a “patchwork quilt of coverage decisions” that could vary from field to field depending on how Corps field staff interpret regulatory guidance.
The association called for the agencies to define drainage ditches and exempt them from the rule.
“We also suggest that the rule should reiterate that drainage tile is not considered a point source,” the group said.
For many years, court challenges to the Clean Water Act focused on the definition of navigable waters. A number of ag groups urged the agency to clarify what are traditional navigable waters.
The Fertilizer Institute (TFI) said in public comments the agencies need to return to what Congress intended for navigable waters.
“To return to the concept of TNWs (traditional navigable waters) that was intended by Congress, the agencies should revise the proposed text of this section to include waters ‘which are currently used, or were used in the past, or may be susceptible to use to transport interstate commerce’ rather than ‘use in interstate commerce,'” the group wrote.
In addition, TFI called on the agencies to clarify that the rule’s definition of “ephemeral” is not considered a jurisdictional water. The group asked the agencies to revise the definition of the term “intermittent” when defining streams, as well as to clarify the rule’s “typical year” concept when talking about precipitation.
“For example, the duration of tributary flow ‘during certain times of the year’ is not specified,” TFI said in comments.
The group also asked for the removal of a “jurisdictional ditches” category from the rule.
The National Association of State Departments of Agriculture (NASDA) said the agencies need to clarify that navigable waters are those used in transport.
“This difference, although small, will ensure that TNWs are waters that are not flowing due to heavy rainfall or other weather events,” the group wrote. “Instead, it will narrow jurisdictional focus to waters that support commerce and are indeed navigable.”
The NASDA asked the agencies to consider physical indicators as well as surface water flows when identifying tributaries as jurisdictional waters.
“In the 2015 rulemaking, ‘bed,’ ‘bank,’ and ‘ordinary high-water mark’ were misused and did not address the amount of water flowing through these features when determining jurisdiction,” the group writes. “In the 2015 rulemaking, NASDA did oppose the use of these physical indicators. However, rather than regulating flow regimes and physical barriers as separate entities, NASDA encouraged the agencies to consider both flow and physical indicators to determine the presence of a jurisdictional tributary.”
The North Carolina Farm Bureau Federation said in comments the jurisdictional ditches category should be eliminated from the rule.
“We agree with the agencies’ proposal to assert jurisdiction over certain types of ditches, such as those that are man-altered tributaries,” the group said.
“But it would be better to do that by clarifying the ‘tributary’ category rather than by establishing a category of jurisdictional ditches, which may create the misimpression that the default status of ditches is that they are jurisdictional. Farmers have a significant interest in ensuring that this rule provides as much clarity as possible over the regulatory status of ditches.”
The group asked the agencies to consider limiting traditional navigable waters to just waters subject to the Rivers and Harbors Act. That act defines waters as those “currently used, or which were used in the past, or may be susceptible to transport interstate or foreign commerce, including the territorial seas and waters, which are subject to the ebb and flow of the tide.”
Wyoming Gov. Mark Gordon said his state remains concerned about how the rule defines intermittent streams and how it treats ditches.
“Wyoming supports the revocation of ephemeral waters that flow only in response to rain and other weather events,” he wrote in comments.
“However, concern remains over the determination that would apply WOTUS jurisdiction to rivers and streams with yearly perennial or ‘intermittent’ flow to downstream navigable waters. Wyoming’s snowmelt-driven hydrologic systems include many dry draws that exhibit continuous but short-duration flows during spring runoff. Additionally, one could argue that all agricultural ditches are ‘intermittent’ by nature, especially because they seasonally convey water during the irrigation season.”
The proposed rule still has the potential to make it difficult for landowners to know which ditches are jurisdictional.
“The current proposed rule also applies jurisdiction to ditches when they ‘satisfy conditions of the tributary definition’ or when they ‘relocate or alter’ a tributary,” Gordon wrote. “These two aspects still have potential to create confusion concerning which ditches are, and are not, considered WOTUS.”
The Colorado Livestock Association said the beef industry has been battling the Clean Water Act for decades and the proposed rule begins to make life easier.
“Most American cattle producers are multi-generational, having dealt with every iteration of CWA jurisdiction since its passage in 1972,” the association said.
“After nearly 50 years of jurisdictional tug-of-war between the Supreme Court and the agencies, regulated stakeholders want nothing more than consistency in the act’s application. In the final rule, livestock producers need a practical, interpretable WOTUS definition.”
Todd Neeley can be reached at firstname.lastname@example.org
Follow him on Twitter @toddneeleyDTN
Source: Todd Neeley, DTN
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