WASHINGTON, June 10, 2015 – The Obama administration’s extensive rewrite of its Clean Water Act rule quelled some concerns raised by agriculture and raised some new issues, and did little if anything to slow the drive by Republican lawmakers to stop it from being implemented.
The Senate Environment and Senate Environment will mark up a bill (S 1140) Wednesday that would force the administration to replace the rule. A similar bill has already passed the House, although it didn’t have enough support to overcome a threatened veto.
House Republicans also will start moving an Interior-Environment spending bill Wednesday that includes a provision blocking implementation of the rule. A similar provision is in the Energy-Water appropriations measure that already passed the House.
Experts in water regulation tell Agri-Pulse that the “waters of the United States” (WOTUS) definitions in the final rule make clearer in many cases what’s in and what’s out. Tile drains and erosional features, for example, are specifically exempted in the rule, and the administration tightened the definition of regulated ditches. Several terms such as “upland” that stakeholders found ambiguous were dropped.
But new provisions have raised concerns the administration is essentially claiming blanket jurisdiction over prairie potholes and other wetlands, and some critics say it still leaves significant ambiguity and puts too much burden on landowners.
Some of those concerns, particularly with wetlands, are based on a misreading of the rule, a top EPA official, Ken Kopocis, said in an exclusive interview with Agri-Pulse.
The EPA and Army Corps of Engineers are working with USDA to develop something like a field manual that landowners could use to easily identify such features as “ordinary high water marks,” a key sign of a tributary that’s regulated as WOTUS, and an erosional feature, which is exempt. The manual will include plenty of photographs, he says.
The goal, Kopocis says, is to enable landowners to determine “on their own” when something is an erosional feature.
Whether landowners will really be comfortable making that determination is an open question. While it’s possible the agencies could come up with something that’s relatively easy to use, especially if they offer concrete examples to illustrate terms, it could be risky to depend on it, says Lowell Rothschild, a regulatory attorney with Bracewell and Guiliani. The Clean Water Act is a ‘legally complex area” and there are potential criminal penalties for violations, he says.
Here’s a look at some of the concerns that are being raised:
WETLANDS – The rule contains new definitions for two types of wetlands:
· Those that are “adjacent” to rivers and rivers, streams and lakes that are already jurisdictional. Adjacent is defined as being within 1,500 feet of a river or other WOTUS water body if the wetland is also in the 100-year floodplain;
· Wetlands clustered in “regional treasures,” including the Prairie Potholes of the upper Midwest, the Texas coastal prairies, and western vernal pools in California.
The big question is over the prairie potholes and regional wetlands, which wildlife groups felt were left vulnerable by the proposed rule. These wetlands are supposed to be evaluated on a case-by-case basis to see whether they meet one of nine criteria for wetlands, including flood control and aquatic wildlife, and on whether they have a “significant” connection upstream and downstream. Some experts say that the rule is written so broadly that virtually all prairie potholes will qualify.
The National Wildlife Federation (NWF) believes the new definition will ensure protection of more prairie potholes. Although conservation compliance requirements in farm programs and crop insurance already require farmers to protect wetlands, the off-site determination process used by USDA’s Natural Resources Conservation Service is likely to identify fewer wetlands than the new WOTUS definition, says NWF’s Jan Goldman-Carter. AWOTUS designation also will protect the wetlands from non-agricultural uses, such as oil and gas development and road construction, she says.
EPA’s Kopocis says his agency has no idea how many of these regional wetlands will be considered WOTUS. “We do not expect to capture the vast majority,” he says, citing the need to show a “significant nexus” with other regulated waters.
The issue then turns on the meaning of “significant.” Rothschild thinks that is likely to be a low bar. He bases that on the fact that the EPA also is claiming jurisdiction over wetlands that are within 1,500 feet from a river or other jurisdictional water body and lie within its 100-year floodplain. Being in a 100-year floodplain means there is a 1 percent chance of the area flooding in any given year, which would connect the wetland with the jurisdictional waterway. “That’s a fairly broad view of what constitutes significant nexus,” Rothschild says.
Regardless, farmers should see little difference in how they operate, said Kopocis.
“Growers know where the wetlands are and farm around them,” Kopocis says. “They are observing the requirements with the farm programs. Unless they are going to undertake something outside of the scope of what they’ve been doing they’re unlikely to need to ask the question whether something is or is not jurisdictional.”
GRASSED WATERWAYS – It’s been unclear whether they would be exempt from WOTUS since Congress forced the administration to withdraw an interpretive rule that listed farming practices and conservation projects excluded from WOTUS. The final rule specifically says that “lawfully constructed” grassed waterways will be exempt from regulation.
A grassed waterway is considered lawful if it was installed in a non-WOTUS area, or in a regulated tributary under an Army Corps of Engineers permit, or if it was put in prior to enactment of the Clean Water Act. Farmers are then free to do anything they need to, including maintaining or reshaping the waterway, Kopocis said.
“We wanted to encourage that kind of installation of grassed waterways and we wanted to make it easier for a farmer who is putting one in to maintain it,” he said.
DRY LAND -- The final rule introduced the concept of “dry land,” an area where it’s OK to build a stock pond or put in an artificial lake without a permit. The proposed rule referred to “uplands,” but there was significant confusion as to what that meant, so the agencies decided to use the term “dry land” instead, said Kopocis.
At least one group, the National Association of Counties, expressed concern that it’s still too vague. (For NACO’s analysis, click here.)
Kopocis says it’s basically any land that isn’t WOTUS, citing language in the preamble of the rule.
The preamble says the “term is well understood based on the more than 30 years of practice and implementation. But in keeping with the goal of providing greater clarity, the agencies state that ‘dry land’ refers to areas of the geographic landscape that are not water features such as streams, rivers, wetlands, lakes, ponds and the like.”
Budget dispute poses challenge for GOP attacks on WOTUS
The best chance Republicans have of blocking the administration from implementing the rule probably is through the appropriations process. President Obama was forced last December to accept a series of policy riders in the fiscal 2015 omnibus spending bill, including one delaying a listing of the greater sage grouse under the Endangered Species Act. But Democrats in the Senate say they’ll filibuster all spending bills until Republicans agree to increase the spending levels.
Republicans, so far, are refusing to negotiate over the spending limits, which are based on the levels set by the 2011 budget agreement. “There’s been a lot of big talk about stopping spending bills. We’ll see if they really want to do that,” Senate Majority Leader Mitch McConnell, R-Ky., said Tuesday.
If there is no deal by the time the 2016 budget year starts Oct. 1, Congress will be forced to pass a continuing resolution to keep the government in operation. The CR would almost certainly not include new policy riders such as one blocking the WOTUS rule.
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