Waters of the United States

Another step toward victory

Contact: Laura Campbell, Agricultural Ecology Department

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.

With the public comment period closed as of Sept. 27, it's expected the EPA will next lead a secondary rulemaking effort where EPA will engage in development of new language after a substantive re-evaluation of the definition of "Waters of the U.S."

This means more public comment opportunities, more potential lawsuits, and the need for farmers to stay engaged and make sure we make our voices heard.

Beginning of the end

The EPA's proposal to rescind the rule and President Trump's Executive order is the beginning of the end for a multi-year process that:

Involved thousands of farmers across Michigan and the country submitting “Ditch the Rule” comments and attending public meetings and forums
Saw EPA use tactics blasted by other agencies and Congressional review as unethical or outright illegal in order to push their rule through
Forced Michigan Farm Bureau, American Farm Bureau Federation, the State of Michigan and nearly 60 other farming and business groups and states to sue the EPA over the rule’s overreach

In the courts

On January 13, the U.S. Supreme Court agreed to hear a petition filed by American Farm Bureau Federation and others over jurisdiction – whether the WOTUS rule should be reviewed by the U.S. 6^th Circuit Court of Appeals where it currently sits, or by U.S. District Courts. As a result, the U.S. 6^th Circuit Court announced on January 25 it will not issue a decision in the case until the Supreme Court decides whether it can do so. This will extend the stay the Circuit Court put on implementing the expansive Rule, which is good news for farmers who would be at risk of uncertainty and increased regulation of their farm fields and forest operations.

In Congress

Senators Deb Fischer (R-NE) and Joni Ernst (R-IA) introduced a Resolution on January 12 calling on the EPA Administrator to vacate the WOTUS rule. Just as important, the Regulatory Accountability Act of 2017, introduced January 3, has passed the House and is moving to the Senate. This bill would reform the regulatory process by requiring agencies to more thoroughly consider concerns by the regulated community, to perform more complete economic impact studies of proposed rules, consult with other agencies and Congress before finalizing a rule, and other requirements to better protect the public from overly burdensome regulation.

What the rule could mean for Michigan

Click on the maps to enlarge!

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 expands regulated waters in two ways:

It regulates all "tributaries," which is anything that has ever had a bed, bank, and high water mark, regardless of whether it has water in it. The Environmental Protection Agency (EPA) can use historical photos, satellite images, or even models to estimate where tributaries are or may have been to regulate them, with no input from landowners.
It regulates all "adjacent waters," which is any water of any size, up to 1500 feet away by rule and up to 4000 feet away on case-by-case basis from both regulated lakes and streams and newly regulated "tributaries." This would greatly expand where people would have to get permits for activities.

The rule's ditch exclusion will 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 can 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 will get no certainty from this rule. The EPA can regulate 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 EPA Waters of the U.S. rule.