Waters of the United States: Clean Water, Clean Rules
Contact: Laura Campbell, Agricultural Ecology Department
After lawsuits, listening sessions, thousands of comments, and a proposal to rescind the 2015 Waters of the U.S. rule (see Background below), the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) have now released a new rule defining what can be regulated as a “water of the United States.”
This is the rule we have been waiting for: clear, straightforward, protecting water quality while giving farmers the certainty of knowing what is and is not regulated on and around their farms.
It is vital that farmers across Michigan and the rest of the country provide comments on this important rule! You can provide comments quickly and easily: text the keyword MIWATER to the number 52886, our Farm Feed alert system. You can also find postcards to sign at Farm Bureau events like the Growing Together Conference and Lansing Legislative Seminar, and updates on the rule with ways to comment in the Farm News. Comments may also be sent by visiting www.regulations.gov, and searching for Docket Number EPA-HQ-OW-2018-0149.
Regulated under the proposed rule:
NOT Regulated under the proposed rule:
This new proposed rule means the Clean Water Act will be implemented and enforced the way Congress intended, giving states the ability to regulate their own waters. Michigan already regulates many surface and ground waters as “waters of the state” (see 1994 PA 451) so this rule means farmers in Michigan will not see additional regulation from the federal level. That regulatory certainty is crucial, because violation of the Clean Water Act carries criminal penalties. But under this new rule, Michigan farmers will continue to work with our state agencies on the permitting, stream, drain and wetland rules they are accustomed to.
Many activists who wanted to see EPA use overreaching authority like it would have had under the 2015 rule are already gearing up to oppose this new proposal. Farmers need to have our voices heard, to let EPA know that we support Clean Water and Clear Rules – and this is the way to do it! Share this information with your friends, neighbors, and County Farm Bureaus, and don’t forget to send in your comments: text the keyword MIWATER to the number 52886.
Background: where we were with the 2015 rule
The Environmental Protection Agency (EPA) and Army Corps of Engineers released their proposal to rescind the overreaching Waters of the U.S. (WOTUS) rule in June 2017, and comments closed in August 2018.
The EPA's proposal to rescind the rule and President Trump's Executive order is part of a multi-year process that:
Report reveals EPA's wrongdoing
The U.S. House of Representatives’ Committee on Oversight and Government Reform released the results of a two-year investigation in October 2016, detailing how EPA failed to follow the procedures of rulemaking when it developed the WOTUS rule, ignored fellow agencies’ concerns, cut short public comment, and let political goals and timelines drive the WOTUS rule’s development.
What the 2015 rule could have meant for Michigan
Current state law regulates lakes and wetlands over five acres, rivers and streams with definite bed, banks, and high water mark, and waters within 500 feet of a regulated lake or stream. This rule would have expanded regulated waters in two ways:
The rule's ditch exclusion would not help many farmers, since it does not apply to ditches that excavate or relocate "tributaries"--which EPA can estimate the presence of a tributary from before the ditch was created.
Drain tiles are not regulated themselves, but could have been be used as the "connection" to regulate surface waters. This would greatly expand Michigan's regulated waters due to the state's extensive drainage.
Large portions of Michigan do not have up-to-date FEMA flood maps. This means EPA can use historical records, models, and soil surveys to estimate flood extent and decide what is regulated.
Farmers would have gotten no certainty from this rule. The EPA could have regulated tiny waters on their land on case-by-case basis by grouping those waters together. EPA says they will not regulate erosional features, but if those erosional features develop a "bed, bank, and high water mark," they can be regulated. Farming exemptions do not cover fertilizer or pesticide application, or even those exempted activities like plowing or tilling if they change the shape or flow of a regulated water. This could hurt all farmers, and devastate many specialty crop industries in Michigan that operate in or near wetlands.
Click here for our complete summary of what is regulated and what is not regulated within the final 2015 EPA Waters of the U.S. rule.