There’s a new WOTUS (Ag Law)
(Editor’s note: Nicole Cook is an environmental and agricultural faculty legal specialist at UMES. This column should not be interpreted as legal or financial advice for the reader.)
We have a new “Waters of the United States” rule.
On Jan. 23, the U.S. Environmental Protection Agency posted the “Navigable Waters Protection Rule” defining the scope of waters that are federally regulated under the Federal Water Pollution Control Act, or the “Clean Water Act” as it is more commonly known.
How the new rule will impact farming operations remains to be seen, however, the EPA has delineated a more narrow definition of waters deemed to be protected and thus subject to the permitting requirements under the CWA.
The new rule lists four specific categories of waters deemed to be “jurisdictional waters” and, thus, protected under the CWA as WOTUS.
The new rule also makes it clear that any water feature not explicitly listed as one of the four categories is deemed to be outside the protection of the CWA.
The four protected jurisdictional waters are:
• Territorial seas and traditional navigable waters;
• Perennial and intermittent tributaries that contribute surface water flow to territorial seas and traditional navigable waters;
• Certain lakes, ponds, and impoundments of jurisdictional waters; and
• Wetlands adjacent to other jurisdictional water.
Territorial seas and traditional navigable waters are things like large rivers and lakes like the Mississippi River and the Great Lakes, and tidally-influenced waterbodies used in interstate or foreign commerce, like the Chesapeake Bay.
A tributary is defined in the new rule as a river, stream or similarly naturally occurring surface water channel that contributes surface water flow to a territorial sea or traditional navigable water in a typical year either directly or indirectly through other tributaries, jurisdictional lakes, ponds, or impoundments, or adjacent wetlands.
A typical year is the normal periodic range (e.g., seasonally or annually) of precipitation and other climactic variables for that waterbody based on a rolling 30-year period. Importantly, under the new rule, a protected tributary must typically flow more often than only after it rains.
So, ditches, which are defined as constructed or excavated channels used to convey water, are only considered protected tributaries where flow from them occurs more often than only after it rains and they were either constructed in or they relocate a tributary, or they were constructed in an adjacent wetland.
The new rule defines “lakes and ponds, and impoundments of jurisdictional waters” as standing bodies of open water that contribute surface water flow in a typical year to a territorial sea or traditional navigable water either directly or through a tributary, another jurisdictional lake, pond, or impoundment, or an adjacent wetland.
They are also deemed to be jurisdictional waters if they contribute surface water flow through channelized nonjurisdictional surface waters, through artificial features (including culverts and spillways), or through natural features (including debris piles and boulder fields). A lake, pond, or impoundment of a jurisdictional water is also jurisdictional if, in a typical year, it is inundated by flooding from a territorial sea or traditional navigable water, or tributary, or from another jurisdictional lake, pond, or impoundment.
Under the new rule, “adjacent wetlands” are wetlands that physically touch other jurisdictional waters at one point or side.
That is, they touch a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water.
An adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, as long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year.
Wetlands separated from a WOTUS by only a natural berm, bank, dune or other similar natural feature are considered to be “adjacent” as are wetlands inundated by flooding from a WOTUS in a typical year.
Wetlands that are physically separated from a jurisdictional water by an artificial dike, barrier, or similar artificial structure will be deemed to be “adjacent” if that structure allows for a direct hydrologic surface connection between the wetlands and the jurisdictional water in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature.
The new rule also specifically excludes certain water-related features from the definition of WOTUS.
The agency has deemed these excluded water features to be “non-jurisdictional,” and, thus, not protected as WOTUS under the CWA.
The non-jurisdictional water features are:
• Groundwater, including groundwater drained through subsurface drainage systems like drains used in agriculture;
• Ephemeral features (features that only have flowing water for short periods of time in response to rainfall), including ephemeral streams, swales, gullies, rills, and pools;
• Diffuse stormwater runoff and directional sheet flow over upland;
• Ditches like many farm and roadside ditches that are not traditional navigable waters, tributaries, or that are not constructed in adjacent wetlands, subject to certain limitations;
• Prior converted cropland (unless the cropland is abandoned/not used for agricultural production, enrolled in long-term and other government conservation programs, or left idle or fallow for nutrient retention or soil recovery following natural disasters like hurricanes or drought for the preceding five years and has reverted to wetlands);
• Artificially irrigated areas, including fields flooded for agricultural purposes, that would revert to upland if not artificially irrigated;
• Artificial lakes and ponds , including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in nonjurisdictional waters (even where they may have a surface water connection to a downstream jurisdictional water in a typical year);
• Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel;
• Stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;
• Groundwater recharge, water reuse, and wastewater recycling structures , including detention, retention and infiltration basins and ponds, that are constructed in upland or in non-jurisdictional waters; and
• Waste treatment systems. Waste treatment systems are defined in the new rule as including all components, including lagoons and treatment ponds (such as settling or cooling ponds), designed to either convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater or stormwater prior to discharge (or eliminating any such discharge).
The new rule does not change the exemptions under the CWA section 404(f) relieving farmers and ranchers of the need for authorization for many types of agricultural discharges into WOTUS.
The new rule does clarify that groundwater, including groundwater drained through subsurface drainage systems like tile drains used in agriculture is excluded under the rule.
It also clarifies the distinctions between waters subject to federal authority and waters subject to the sole control of the states and tribes.
The new rule will become effective 60 days after publication in the federal register.
Legal challenges to the new rule are expected, so be sure to watch this column for updates.
To learn more about how the agency developed the new rule, how the agency intends to implement the new rule including how it will determine what are surface water features or what is a perennial or intermittent flow, how it’ll determine what is a typical year, as well as more illustrative examples of applying the new rule, go to www.epa.gov.
For more information about the history of the WOTUS law as well as updated information about the new rule, visit the Maryland Risk Management Education Blog at ugrisk.umd.edu and search for “WOTUS.”
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