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Ag-Visor Blog

How Much Water Can the Federal Government Regulate?

Authored by Robert J. Reinertson
Robert J. Reinertson
Attorney
Wausau Office

Posted on October 4, 2019
Filed under Ag-Visor

A controversial federal environmental regulation has been repealed, according to an announcement Sept. 12 by the administrator of the U.S. Environmental Protection Agency and the assistant secretary of the Army who oversees the Army Corps of Engineers. That means the definition of “Waters of the United States” will return to its pre-2015 definition.

That’s important to the farm sector because many agricultural producers have lands with or near water features. Under the Clean Water Act the federal government has authority to regulate “Waters of the United States” for pollution prevention and other purposes. The issue involves the extent to which the federal government may exercise authority for those purposes – instead of state or local governments.

The meaning of “Waters of the United States” was significantly expanded in 2015. Federal regulatory authority was extended beyond waters that traditionally had been considered as “Waters of the United States” – waters used in interstate or foreign commerce, seas, tributaries, etc. It was extended to waters that were determined on a case-by-case basis to have “a significant nexus” to those waters. Those included significantly more wetland areas, waters within the 100-year floodplains of “Waters of the United States” and “prairie potholes” in the Upper Midwest, among others.

The 2015 rule defined “significant nexus” as waters – including wetlands, either alone or in combination with other waters – having a significant effect on the chemical, physical or biological integrity of other waters. That effect was evaluated according to factors such as sediment trapping, nutrient recycling, pollutant trapping and transport, retention of flood waters, runoff storage and aquatic-species habitat. It extended federal authority to many more wetlands and to smaller water features.

The “significant nexus” test led to confusion and litigation. Many legal challenges were brought; implementation of the rule was blocked in more than half the states. Now all the country will again be under the pre-2015 regulations when the repeal takes effect 60 days after publication in the Federal Register.

The repeal of the 2015 rule is the first step of a two-step process undertaken by the Trump Administration to turn back regulations implemented by the previous administration. The second step is a proposal by the administration to put in place its own definition of “Waters of the United States.” The proposed rule was published in the Federal Register earlier this year. According to the EPA, the new definition “would clearly define where federal jurisdiction begins and ends” and which waterways are solely under state authority rather than federal authority. The public comment period ended April 15. The EPA and the Army are considering the 620,000 comments that were submitted.

The proposed rule defines “Waters of the United States” in several ways.

  • waters used currently, in the past and potentially in the future for interstate or foreign commerce, including those subject to the ebb and flow of tides.
  • certain tributaries of those waters
  • ditches used for interstate or foreign commerce
  • lakes, ponds and tributaries with perennial or intermittent flow that meet certain criteria
  • impoundments of the waters identified above
  • wetlands adjacent to the waters identified above

The proposed rule also would explain what “Waters of the United States” is not. Many of the categories listed are the same as in the 2015 rule.

  • groundwater
  • prior converted cropland
  • artificially irrigated areas, including cranberry bogs, that would revert to upland if irrigation ceased
  • artificial lakes and ponds constructed in upland, including water-storage reservoirs and farm and stock watering ponds

Significantly the new rule would exclude surface water flowing or pooling only in direct response to rainfall or snowfall. Most significantly the “significant nexus” test is gone. Federal authority over many wetlands areas would end.

There are sure to be many legal challenges to both the repeal of the 2015 rule and the implementation of the proposed rule. That’s something that affects agricultural producers who have operations with or near water bodies, streams, wetlands and other water features. For those who were affected or potentially affected by the legal limbo brought on by injunctions against the 2015 rule, it appears they now have some clarity. Time will tell as to whether the new rule, if implemented, will further reduce the confusion concerning which waters are subject to federal regulation.

 

© 2019 Agri-View. Madison, WI.  Reprinted with permission.