1. The Clean Water Act “Waters of the US” Proposed Rule -- What is it and what are the implications for agriculture? August 1, 2014

2. Acronyms and Terms
Agencies Environmental Protection Agency & U.S. Army Corps of Engineers
CWA Clean Water Act
WOTUS “Waters of the U.S.”, those waters under the jurisdiction of the CWA
Rule The Agencies’ proposed WOTUS rulemaking
FEMA Federal Emergency Management Agency
USGS US Geological Survey

3. Agencies’ WOTUS Rule
Proposal published in Federal Register on April 21, 2014
1/ /definition-of-waters-of-the-united- states-under-the-clean-water-act
Comments are due on October 20, 2014
Include EPA-HQ-OW in the subject line of the message.
Mail: Send original & 3 copies to: Water Docket, USEPA, Mail Code 2822T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, Attention: Docket ID No. EPA-HQ- OW

4. Why a Rule Now?
Over last 30 years the Agencies have claimed broad jurisdiction, using expansive interpretations of the non-navigable waters that are subject to CWA
Many of those expansive interpretations have never been spelled out in a formal rulemaking
Two Supreme Court decisions (2001 & 2006) involving wetlands
Told the Agencies their wetlands interpretations were too broad
Signaled that their interpretations involving streams and ditches with less than permanent flow were too broad
Indicated that a not insubstantial and more than speculative finding of a “significant nexus” between remote wetlands, streams/ditches on one end and permanent flowing waters on the other could, under certain circumstances, make the remote waters WOTUS
Indicated a rulemaking was needed.
This proposed rule is a response to this situation

5. What Does the Rule Do? Restates that navigable waters are WOTUS
Defines in rulemaking for the first time, and make WOTUS
Tributaries, no matter how limited their flow of water or how remote they are;
Numerous ditches found in common circumstances
Defines “adjacent” wetlands and waters, including those in “floodplains” and “riparian zones”
Creates a case-by-case significant nexus test for remote waters and wetlands – the so-called “other” waters.

6. What is a WOTUS Under the Rule?
Courts have said the CWA covers waters that are navigable and certain non-navigable waters; the law doesn’t define the latter.
The Agencies have interpreted which of the non-navigable waters are WOTUS.
The rule defines WOTUS as:
Coastal waters and territorial seas;
Rivers and lakes;
Tributaries that reach the above waters (including many ditches with requisite characteristics);
All “impoundments” of the above;
Waters or wetlands that are “adjacent” to, and have some type of water connection, with any of the above; and
On a case-by-case basis, “other” waters or wetlands that are isolated and don’t fall into one of the categories above, but alone or in combination with similar waters have a significant nexus to the above.

7. What Does the Rule Exclude From Jurisdiction?
Prior converted cropland
PC’s are determined by USDA-NRCS under Swampbuster
But the Agencies state that they retain right to make a different CWA determination.
Two types of ditches
(1) those ditches that are excavated wholly in uplands, drain only uplands, and have less than permanent flow, and
(2) those ditches that do not contribute flow, directly or indirectly through other waters, to a WOTUS.
Tile drains
Waste treatment systems
Farm and stock ponds and settling basins that are excavated in uplands and collect surface runoff
Farm and stock ponds are WOTUS if they are created by impounding any size of stream
Artificial irrigation areas in land that would return to upland if irrigation ceases
Gullies, rills and non-wetland swales

8. What Are “Tributaries?”
A feature is a tributary if
It is a natural or manmade channels;
Has a discernible bed, bank and ordinary high water mark
Has any flow in it for any length of time
Year-round, the “perennial” tributaries
Seasonally, the intermittent tributaries
Only when it rains, the ephemeral tributaries
And it contributes flow to another water through a surface or subsurface connection
Includes rivers, streams and, subject to certain conditions, ditches

9. WOTUS Tributaries in West Central Ohio – National databases can map some but not all tributaries. This is from USGS data. The blue/red lines are perennial, intermittent or ephemeral streams. But clearly visible beyond the mapped streams are additional, unmapped tributaries. All of these tributaries are WOTUS. The yellow hatched area is a FEMA 100 year floodplain (more on this later).
Source: Agricultural Nutrients Policy Council map prepared by Geosyntec

10. Drainage in Illinois Corn Field – Drainage features such as this in an Illinois corn field drain off spring rains and can create tributary features like those seen in the previous slide which meet the WOTUS definition even if they are not identified in the national databases.

11. Which Ditches Are Jurisdictional?
Ditches that drain a WOTUS
Ditches in upland area that flow permanently
Ditches not in upland areas
The rule does not define upland
EPA science document defines upland as not in a wetland or floodplain
Ditches created through improvement of a stream

12. Ditch in floodplain (non-upland), WOTUS

13. Former (ephemeral) stream, improved for drainage, WOTUS13

14. What Does “Adjacent” Mean?
Adjacent means bordering, contiguous or neighboring, and includes waters and wetlands separated from WOTUS by dikes , berms, and dunes
Neighboring means waters located in riparian area or floodplain of a WOTUS, or waters with a shallow subsurface or confined surface hydrologic connection to WOTUS
Riparian area means area bordering a WOTUS where surface or subsurface water influence plants and animals in that area
Floodplain means area bordering WOTUS where sediment is deposited through inundation during periods of moderate to high water flows.

15. Floodplains in West Central Ohio – The rule asks for comments on how to precisely define a floodplain. In this map, the yellow hatched areas represent an estimate of floodplain for the rule using FEMA 100 year floodplain data, and the white areas are estimates for those tributaries that haven’t been mapped by FEMA, using a 35 foot buffer. Wet areas, wetlands, ditches, in the floodplain are WOTUS.
Source: Agricultural Nutrients Policy Council map prepared by Geosyntec

16. Riparian area in S. New Jersey – Waters in a riparian area that is hydrologically connected to a WOTUS are themselves WOTUS. These marked features may also be impoundments of an ephemeral or intermittent stream, which also would make them WOTUS under the rule.
Source: Base map from the USDA-NRCS web soil survey

17. How Do Remote Wetlands and Waters Become WOTUS?
These “other” remote waters and wetlands become WOTUS if, on a case-specific basis, they have a significant nexus with the other WOTUS;
The remote waters or wetlands are evaluated in combination with other similarly situated waters or wetlands located in the same region;
Significant nexus means these remote waters significantly affect the chemical, physical, or biological integrity of the downgradient WOTUS

18. Isolated Wetlands
Wetlands in South Dakota. Do these, alone or in combination with others that are similarly situated in the area, have a significant nexus to relatively permanent flowing waters downstream?
Source: Agricultural Nutrients Policy Council image from maps prepared by Geosyntec

19. Existing CWA Exemptions Apply
Section 404(f) normal farming, ranching and silviculture activities still exempt
Normal ditch maintenance is exempt
Agricultural stormwater discharges are exempt
Irrigation return flow discharges are exempt

20. What Are Agriculture’s Major Concerns & Why?

21. Jurisdiction Claimed is Too Broad!
After two Supreme Court decisions, how can Agencies claim so many features as WOTUS?
Iowa tributaries from USGS database (perennial + intermittent waters)
Iowa tributaries from USGS (perennial + intermittent + ~ 35% of ephemeral waters) + FEMA 100 year floodplain
Source: Agricultural Nutrients Policy Council map prepared by Geosyntec

22. Rule Creates More Uncertainty
There are literally millions of open questions in farm country to be answered by Agency personnel – are these WOTUS?

23. More Section 404 Problems
More drainage features being jurisdictional means either
More Army Corps 404 permitting
More Agency challenges in the field to normal farming activities
“This regional general permit with authorize the discharge of fill materials into waters of the US in the upper reaches of watersheds.”

24. Suits Leading to NPDES Permitting for Row Crops
CWA citizen suits have resulted in aquatic pesticides needing NPDES permits
Under this rule, citizen suits would call for NPDES permits for the normal use of fertilizers and pesticides around dry drainage features that would now be WOTUS

25. Isn’t the CWA About Waters that are Fishable and Swimmable?
We can work together to reduce losses of nutrients and sediments to protect quality of valuable waters.
Drainage features like these will never be fishable or swimmable, and don’t need that designation to protect downstream waters.