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, the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) released a new proposed rule in February defining what can be regulated as a “water of the United States.”
The new rule is what 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.
Michigan Farm Bureau members submitted more than 1,100 comments on the new rule during the 60-day comment period that ended April 15. The EPA is expected to use the remainder of 2019 to review the more than 600,000 public comments submitted and issue a final rule in early 2020.
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.
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.