New Rule Changes for WOTUS

Apr 19, 2019  | 3 min  | Ep4435

Several thousand Corn Belt acres remain under water from spring flooding.

This week, several senators journeyed to the heart of the damage and delivered sharp criticism to the federal agency that manages dams along the Missouri River.

Some of the same elected officials sent letters to the EPA over the Waters of the U.S. before a comment period ended.  

At the core of both issues is water.

Peter Tubbs reports. Producer contact: peter.tubbs@iptv.org

With its comment period closed, the Environmental Protection Agency is finishing work on revised definitions of the Waters of the United States rule or WOTUS.

The creation of new terms were required by an executive order made in the first weeks of the Trump Administration. The order seeks to replace the 2015 version of the WOTUS rule with more definitive and narrower language.

The Waters of the U.S. rules build upon the 1972 Clean Water Act, which focused on pollution that was then being discharged into the nation’s lakes and rivers from single point polluters like industrial sites. The water quality of many rivers and lakes has improved in the succeeding four decades.

The EPA maintains that the majority of water pollution originates from “nonpoint source” origins: urban streets, agricultural land and rural areas. The Obama administration asked the EPA and U.S. Corps of Engineers to craft language to clarify an earlier rule. The result was what some have called language that could place many ditches, storm water control basins and wetlands under federal oversight.  

Under the 2015 rule, areas that were generally within the 100-year flood plane or high tide fell under federal control. These areas could include infrequent or seasonal bodies of water as long as they fed into a larger tributary.

The newly proposed changes would redefine “navigable waters” as bodies that could be used to transport “interstate or foreign commerce”, the continuous (contiguous?) bodies of water that flow into them, and waters that adjoin or connect.

The U.S. Geological survey estimates that 18 percent of streams and half of the wetlands under federal control in the 2015 rules would not be protected federally under the new rule.

Many rural streams and areas of occasional water flow after rain or snow melt would return to state oversight.

Agricultural groups generally support the narrower definition of the rule.

Zippy Duvall, American Farm Bureau Federation: “The new rule would put a stop to the federal agencies’ unpredictable and inconsistent case-by-case approach for determining jurisdiction. With past rules and regulations, farmers have found themselves under a cloud of uncertainty — or worse yet, subject to bureaucrats controlling what happens on the land where we make our living.”

Environmental and water quality advocates remain in support of the Obama-era rule.

David Hayes, State Energy and Environmental Impact Center: “The Trump administration continues to flout the rule of law with its decision to abandon Justice Kennedy’s ‘significant nexus’ standard, even though this standard has been upheld by the federal courts countless times already,”

The EPA is expected to finalize the rule at the end of the year.

For Market to Market, I’m Peter Tubbs.

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