Navigable waters reconsidered
Jan 23, 2020
WASHINGTON, DC -- Today, Environmental Protection Agency (EPA) Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works R.D. James announced the Navigable Waters Protection Rule to replace the Obama-Era Waters of the United States (WOTUS) rule. This rule is the second step in the two-step process set forward by the Trump Administration to contain the reach of the Clean Water Act of 1972.
The 2015 WOTUS rule has seen many legal challenges since its introduction. The rule drastically increased the regulatory reach of the EPA and U.S. Army Corps of Engineers by expanding the definition of WOTUS to include not only all waters in America, but even areas that are normally dry land. This expanded definition made it difficult for farmers, landowners, and others to determine what was and was not governed by WOTUS on their land.
Last September, the Trump Administration repealed the controversial rule and proposed a new Clean Water rule clarifying federal oversight of waters, water features, and dry land that is sometimes wet.
This new rule does not alter federal jurisdiction of permanent waterways, such as lakes, rivers, streams, and other bodies that always or usually contain water. However, the new rule draws clear lines indicating that usually dry areas should no longer be considered federal waters but would continue to be subject to state jurisdiction.
The new rule divides U.S. waters into four categories: traditional navigable waters and the territorial seas; perennial and intermittent tributaries to navigable waters; certain lakes, ponds, and impoundments; and wetlands that are adjacent to water covered by the rule. The rule also denotes those waters that are not subject to federal control, including prior converted cropland; farm and stock watering ponds; many ditches, including most farm and roadside ditches; water features as a direct result of rainfall; groundwater; and waste treatment systems.
The policies regarding Prior Converted Cropland and the treatment of ditches continue to be of major interest to rice farmers. USA Rice submitted comments on the proposed revision earlier this year.
“USA Rice appreciates the anticipated clarity that this rule will bring regarding federal jurisdiction over water,” said Arkansas rice farmer and USA Rice Regulatory Affairs Chair David Petter. “A clearer understanding of just what the government is regulating will better allow farmers to implement sustainable conservation practices and carry out normal day-to-day farming practices as well. Rice farmers are conservation-minded folks who value clean water and a healthy environment, and this new rule will allow us to do just that.”