Many areas covered by the Obama administration’s “waters of the U.S.” rule would be removed from federal oversight under a proposal released today by the Environmental Protection Agency and Army Corps of Engineers.
EPA and the Corps propose to remove ephemeral streams – those that flow when the rain falls – from federal jurisdiction. In a change sure to be welcomed by the ag industry, the proposal also would exclude ditches from regulation unless they contribute flow to a perennial or intermittent stream.
Intermittent streams, according to archived information on EPA’s website, “flow during certain times of the year when smaller upstream waters are flowing and when groundwater provides enough water for stream flow.”
“Ditches that operate like a traditional navigable water, like the Erie Canal, things like that, they’re regulated,” EPA Assistant Administrator for Water David Ross said told reporters ahead of the proposal’s release. Ditches draining “adjacent wetlands” – those next to a covered water – “will also be in, so long as they provide perennial or intermittent flow to a traditional navigable water (TNW). All other ditches will be out.”
EPA Acting Administrator Andrew Wheeler said the proposal is designed to clear up confusion over which areas are under federal jurisdiction and which are not, noting that because of litigation around the country, the WOTUS rule is in effect in 22 states while pre-WOTUS regs are in effect in the other 28.
Wheeler also went after the 2015 rule. Echoing leaked agency talking points obtained by the Daily Caller, he said it was not about water quality but about “power – power in the hands of the federal government over landowners” and that it put land-use decisions “in the hands of distant unelected bureaucrats.”
The proposal comes with a 60-day comment period, which environmental groups are certain to attack as insufficient for a proposal of this scope. The WOTUS proposed rule had a comment period of 207 days.
In rejecting jurisdiction for ephemeral streams, the proposal parts ways significantly with the 2015 rule, which relied on an extensive scientific analysis on water connectivity that found “ample evidence” to demonstrate “many wetlands and open waters located outside of riparian areas and floodplains, even when lacking surface water connections, provide physical, chemical, and biological functions that could affect the integrity of downstream waters.”
EPA prepared no similar report this time around, Ross said, emphasizing instead the administration’s desire to come up with legally defensible regulations “informed by science.”
In doing so, EPA was informed by an executive order issued by President Trump early in his presidency which directed EPA to come up with a new rule using as a model the late Justice Antonin Scalia’s opinion in the 2006 Rapanos decision.
That decision was a 4-1-4 split – with Kennedy the "one" – that the previous administration interpreted as requiring the government to show waters must have a “significant nexus” to traditional navigable waters in order to regulate them.
The test was advanced by former Justice Anthony Kennedy – and has been upheld by all the circuit courts of appeals that have considered the question.
Ross said simplicity is a central goal of the proposal. “Our goal really was to provide the fewest number of categories of waters that are in so it’s easy to understand and implement,” he said.
To determine “what’s in and what’s out,” Ross said the agencies will use the concept of a “typical year” that uses a 30-year average of flows “as a way of normalizing data and of dealing with episodic events.”
“The typical year construct will help provide better clarity,” Ross said. “We will be working with our field folks to provide additional clarification as to how do we trace perennial or intermittent flow.” Ultimately, however, “We think the amount of technical questions in the field will be greatly reduced.”
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