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Russell Nemetz New WOTUS Rule Dials Back Federal Reach
by Russell Nemetz, click here for bio

Program: Land & Livestock Report
Date: December 14, 2018

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EPA on Tuesday released a newly proposed waters of the United States, or WOTUS, rule that would erase many of the concerns farmers and ranchers had about the 2015 rule.

Under the proposal, there would be just six categories of jurisdictional waters. That includes traditional navigable waters, tributaries, certain ditches that are navigable or affected by tide, lakes and ponds, impoundments, and wetlands that abut or are connected to waters of the United States.

The proposal lists waters that would not be regulated. That includes certain land features where water is present only as a result of heavy rainfalls, groundwater, most ditches, prior-converted croplands, storm water and wastewater features.

David Ross, EPA's assistant administrator for water, said during a press briefing the EPA was looking for "simplicity, clarity and regulatory certainty" in developing the new rule "recognizing the federal government has limited powers."

"Our goal was to provide as few categories (of WOTUS) as possible," Ross said.

On navigable waters, he said the EPA is not changing what was historically regulated.

When it comes to tributaries, in particular, Ross said the EPA attempts to provide a "straight-forward" definition.

When looking at tributary flows, the new rule uses the term "typical year" to determine if it is a WOTUS. Currently, that term is used in the field by EPA and U.S. Army Corps of Engineers in making Clean Water Act determinations.

Ross said "typical year" refers to the use of precipitation data on a 30-year basis. Though the new rule is designed to be more understandable for regulated parties, he said there still will be a need to make individual WOTUS determinations in the field.

So if a tributary contributes to flow in a larger, navigable water, it is a water of the U.S. The data is updated to reflect changes in precipitation.

"Ditches that operate like the Erie Canal are in," he said. "Lakes and ponds that operate like navigable waters, they are in. Impoundments always have been regulated, no change."

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