Waters of the United States jurisdiction changed



WASHINGTON – Jan. 23, 2020, the Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced the improved definition for “waters of the United States” (WOTUS) with the Navigable Waters Protection Rule. “ The Navigable Waters Protection Rule ends decades of uncertainty over where federal jurisdiction begins and ends. For the first time, EPA and the Army Corps of Engineers are recognizing the difference between federally protected wetlands and state protected wetlands. It adheres to the statutory limits of the agencies’ authority. It also ensures that America’s water protections – among the best in the world – remain strong, while giving our states and tribes the certainty to manage their waters in ways that best protect their natural resources and local economies.”
In March 2014, the Obama administration released a regulation that would assert Clean Water Act jurisdiction over nearly all areas including those with undiscernible connections to water resources and man-made conveyances. Specifically, the Obama WOTUS rule expanded agency control over 60 percent of the country’s streams and millions of acres of wetlands that were previously non-jurisdictional. In September 2019, the Trump administration, EPA and Army Corps of Engineers repealed the controversial 2015 WOTUS rule and proposed a new Clean Water rule clarifying which level of government, federal or state, would oversee water features and dry land that is sometimes wet.
The revised WOTUS definition identifies four clear categories of waters that are federally regulated under the Clean Water Act: the territorial seas and traditional navigable waters; perennial and intermittent tributaries; certain lakes, ponds and impoundments; and wetlands that are adjacent to jurisdictional waters. The final action also details what waters are not subject to federal control, including features that only contain water in direct response to rainfall; groundwater; many ditches, including most farm and roadside ditches; prior converted cropland; farm and stock watering ponds; and waste treatment systems.
Leaders of the National Potato Council (NPC) welcomed the announcement that the U.S. Environmental Protection Agency (EPA) finalized its proposed rule defining the Waters of the United States (WOTUS) rule with the Navigable Waters Protection Rule. EPA’s action also defines what waters are not subject to federal control, including most farm and roadside ditches, prior converted cropland, and farm and stock watering ponds.
“Potato farmers are committed to protecting the nation’s waters,” said Britt Raybould, President of the National Potato Council. “However, the imposition of unnecessary federal burdens, such as regulating ditches on private farms that are generally dry throughout the year, undermines that overall mission by creating uncertainty and increasing costs. EPA’s newly issued rule avoids those negative outcomes and provides increased clarity regarding the responsibilities of farmers under the Clean Water Act in protecting our nation’s surface water resources.”
NPC vice president of Environmental Affairs Dominic LaJoie also welcomed the news. “NPC appreciates EPA and the Army Corps of Engineers for issuing a final rule defining what waters are subject to the permitting authority under the Clean Water Act. While we are still reviewing the rule, it appears that the federal agencies have adopted a common-sense approach in determining the act’s scope. It recognizes the authority of the states to continue to manage their waters while providing the federal government appropriate authority to protect navigable waters,” said LaJoie.
“Presidents of Colorado Corn Growers Association and Colorado Corn Administrative Committee made statements regarding the Environmental Protection Agency’s (EPA’s) replacement regulation for Waters of the United States (WOTUS) Rule, which replaces the 2015 version that would have increased regulatory burdens and costs for farmers and other businesses. The new Navigable Waters Protection Rule Clean Water rule is welcome news to farmers,” stated CCAC President Troy Schneider.”
“It gives us clarity and certainty about which waters come under federal versus state jurisdictions to make water management more efficient and effective. It puts small bodies of water back into the hands successfully managing them all along – state and local governments. And gives farmers, land and business owners a way to keep protecting the environment without threat of government action. Farmers rely on clean water to make a living and often go above and beyond regulatory requirements to be avid stewards of all their resources,” said CCGA President Dave Cure.
Contrastingly, Jill Hunsaker Ryan, executive director, Colorado Department of Public Health and Environment stated, “The EPA’s announcement today is alarming as it puts our precious waters at risk. Every Coloradan, and so many others from neighboring states, are dependent on Colorado’s healthy waterways. At the department, regardless of what happens at the federal-level, we’ll always be committed to the health of our waters. Healthy waters mean healthy Coloradans,” said Jill Hunsaker Ryan, executive director, Colorado Department of Public Health and Environment.
“In the absence of federal leadership, we are going to do everything possible to protect streams and wetlands in Colorado. It’s sad that we have to step up in contrast with our federal government on something so basic as protecting our water, but we must. The rollback removes huge swaths of Colorado’s waters from federal jurisdiction, waters used by 19 states and Mexico. It’s estimated that almost 70 percent of our Colorado Waters could be impacted by this rule. Additionally, the change will impose significant burdens upon the State of Colorado,” said Patrick Pfaltzgraff, director, Water Quality Control Division.
Earlier in the year, the Colorado Department of Public Health and Environment, Colorado Department of Natural Resources, and Colorado Department of Agriculture collectively rebuked the EPA’s proposed rule change.

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