As promised during the campaign, President Trump’s administration has proposed a rule to roll back the so-called WOTUS regulation. The Obama-era Waters of the U.S. rule, as it’s formally known, was considered by many to be an over-reaching, burdensome regulation that did little to protect the environment while doing a lot to drive up unnecessary costs to farmers. IL Corn joined many other groups in calling for repeal of the rule, most recently submitting our thoughts on the issue to the State of Illinois for them to consider as the official State position was submitted to EPA Administrator Scott Pruitt, at his direct request to Governors.
Clearly, protecting water quality through effective best management practices is a priority for the Illinois Corn Growers Association. With regard to fixing WOTUS, IL Corn suggested that the State of Illinois include the following language with regard to WOTUS.
“Illinois Corn Growers Association is pleased to see that Trump Administration has determined that WOTUS needs to be given some serious thought by proposing this repeal,” said ICGA President Justin Durdan. “We’re ready to work with the Administration and the Army Corps of Engineers on thoughtful, common sense approaches to water quality issues that actually make a difference to the environment and to the farm.”
First, EPA should conduct a thorough review of congressional intent and judicial interpretations, including Justice Scalia’s opinion in the Rapanos case, and develop an independent interpretation of the various Clean Water Act terms, including “waters of the United States,” rather than relying strictly on one judge’s view.
Second, EPA should craft a new definition in reliance on this interpretation and consistent with the following general principles:
- Generally, federal jurisdiction extends somewhat beyond navigable waters to certain non-navigable water bodies and wetlands. However, federal jurisdiction cannot properly extend to non-navigable, isolated/intrastate waters and wetlands. Nor does it extend to any ordinarily dry features, such as ephemeral streams.
- In defining those non-navigable water bodies or wetlands that are “waters of the U.S.”, EPA should focus on water features that are likely to directly affect traditional navigable waters and that are identifiable based on clear, objective characteristics, to provide clarity and certainty to regulators and the public.
- A water feature that is “relatively permanent” must contain water persistently and frequently. At a minimum, they must continuously carry water on a seasonal basis (such as throughout the spring season). Features that are usually dry and only carry water when it rains are not “relatively permanent” waters.
- Wetlands should only be “waters of the U.S.” when they are immediately adjacent to traditional navigable waters and their tributaries, meaning they directly touch or share a common border with those waters. This would include wetlands that are beside such waters but separated by a man-made or natural berm.
- Any revised definition should retain the long-standing codified exclusions from WOTUS and should consider the need for additional exclusions for features such as ditches or irrigation structures, depending on the scope of the revised WOTUS definition.