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June 4, 2015

WG Analysis of the Final WOTUS Rule

Last week the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) issued final rule changes on the “Waters of the U.S. (WOTUS) rule.” The rule triggers federal jurisdiction under the Clean Water Act.Public reaction to the rule over the last year has been heated. Some accused the EPA of extending its power beyond the scope Congress intended, and others claimed the rule didn’t go far enough. Although the rule has been finalized it is likely that it will not have a chance to be implemented before Oct. 1 – the new budget cycle – when many in Congress are threatening to cut off funding for it.

Western Growers’ federal affairs staff submitted comments late last year along with over a million other comments, seeking clarification in certain areas of the rule including: the legitimacy of the rules; states’ rights over the federal rules; and the numerous ambiguities, omissions, and definitions within the rule.Western Growers also asked that the finalization of the rule be delayed until state and local governments had been given more time to engage.The full comments, the white paper and other background documents are available here.

The final rule released last week did have changes from what was previously proposed. The definition of “ditch” and how it relates to jurisdictional water under the “tributary” definition had been confusing and concern was expressed by agriculture as well as irrigation and water districts. In the final rule, many, if not most of those concerns were clarified in order to maintain or even strengthen protections and exemptions to ensure jurisdiction by the federal government was not expanded. Western Growers also expressed grave concerns over how adjacent land as a category was being defined and how that might impact agricultural lands. Again, most if not all of the confusion over these definitions, was cleared up. Finally, Western Growers raised concern over a proposed joint EPA-USDA rule and that rule was withdrawn completely. All of these changes were positive, however, several areas of the rule continue to be of concern including a sufficient definition for what amount of hydrological flow is necessary to establish “connections.”

The Supreme Court has expressed on several occasions that at the heart of the Clean Water Act’s jurisdiction is hydrology or water flow and the meaning of the term “navigable.” In the final rule, EPA and the Corps should have explained the connection of various water bodies with each other and hence how jurisdiction could be claimed more precisely. Furthermore the two agencies appear to continue to believe that wildlife indicators of connection are sufficient, on their own to establish jurisdiction which again we do not believe addresses what the Court has routinely said is the heart of the Clean Water Act. Should this regulation ever be challenged in court, those would appear to be areas where the agencies might lose.

While a court challenge of these regulations is possible, Congress is more likely to suspend the implementation of these rules as part of the next budget cycle which begins Oct. 1, 2015. Members of both parties in both chambers oppose the expansiveness of the regulations and many members of Congress have promised to cut off all funding to implement this rule as part of the next budget package. For practical purposes, that means the EPA and the Corps will have less than four months to implement these complex regulations. It would be very difficult to train all the people needed to begin implementing this new regulation in that time span before funding might be cut off. Implementation could not then begin until after the 2016 Presidential election and there is a new Administration in place in 2017. The next president is then likely to institute a review of these regulations and be in a position to change them.

For more information, please contact WG’s Dennis Nuxoll.