National Farmers Union (NFU) President Roger Johnson today submitted comments to the U.S. Environmental Protection Agency (EPA) on its proposed rule addressing the “Waters of the United States (WOTUS) Definitions Under the Clean Water Act.” The comments are intended to provide the agencies with advice for drafting a final rule that does not increase CWA jurisdiction and promotes consistent application of EPA policies, which aligns with the agencies’ stated intent.
“These comments should help the agencies avoid using language that could be taken out of context and used to stretch CWA jurisdiction in the future,” said Johnson. “The agencies’ stated intent is to replace inconsistent practices with clear, bright-line tests through this proposed rule. If NFU’s comments are given proper consideration, the final rule will allow the regulated community the certainty it needs to conduct its business free from fear of undue regulatory interference and without sacrificing the agencies’ ability to protect the United States’ water resources,” he said. “The importance of clean water today and for future generations is critical to the well-being of the nation.”
Johnson pointed out that if NFU’s comments are incorporated into the final rule, a number of important and much needed clarifications will be achieved. Those include:
- A definition of “tributary” that clarifies without increasing CWA jurisdiction.
- A bright-line rule for “adjacent waters,” reducing the need for case-by-case determinations.
- Codification of agency practice in light of Supreme Court rulings, increasing the predictability of jurisdictional determinations by the agencies.
- An exclusion of ditches that do not connect with wetlands, riparian areas, floodplains, or other waters.
- An exclusion of ditches without perennial flow from CWA jurisdiction.
- Affirmation of exemptions for normal agricultural activities.
Johnson urged other groups submitting comments to be constructive in critiquing the rule and to remember that EPA has been ordered by the Courts to write a rule and that it was up to vested interests, like farmers and ranchers, to provide expertise and insight as to how this rule will operate in the real world. “If NFU’s comments are incorporated into the final rule, it will remove a lot of uncertainty and protect family farmers from litigation,” he said.
Read the comments in their entirety here.