Waters of the United States

Waters of the United States: Clean Water, Clean Rules

WOTUS_CWA_2019 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:

Click to enlarge...

Waters that are, were, or could be used in interstate or foreign commerce, territorial seas and those with tides
Tributaries (water with permanent or intermittent flow in a typical year) of waters used in interstate or foreign commerce as described above
Ditches that are relocated/altered tributaries, used in interstate or foreign commerce as described above, or constructed in adjacent wetlands so long as they meet the definition of “tributary”
Lakes and ponds used in interstate or foreign commerce as described above, or which contribute perennial or intermittent flow to those waters, or which are flooded by them in a typical year
Impoundments of any of the above waters
Wetlands adjacent to (directly touching) any of the above waters

NOT Regulated under the proposed rule:

Anything not described in the list of regulated waters, and specifically:
Groundwater, including subsurface drainage
Ephemeral flow and surface directional sheet flow (surface runoff)
Ditches that don’t meet the regulated definition
Prior converted cropland (using USDA’s definition)
Artificially irrigated flood areas (cranberries, rice, etc.) that would revert to upland if not irrigated
Artificial lakes and ponds in uplands (storage, stock/farm ponds) that don’t meet the regulated definition
Upland features incidental to mining or sand/gravel extraction
Upland storm water control features
Upland wastewater recycling/detention/retention/infiltration/groundwater recharge basins
Upland waste treatment systems

What does this mean for Michigan?

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

This picture shows how WOTUS could be used to determine that runoff down a logging road can create a regulated "tributary" under the rule.

Is this a regulated "depressional wetland" or an unregulated puddle?

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:

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

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:

Click on the maps to enlarge!

It regulated 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 regulated 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 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.