WATERS OF THE US (WOTUS)
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In March, USEPA and the U.S. Army Corps of Engineers announced a proposed rule that
would expand their regulatory authority under the Clean Water Act.
Agencies have stated just “clarifying” their jurisdiction.
Far beyond what Congress intended, and what the U.S. Supreme Court has decided.
Puddles, ponds, ditches, ephemerals (land that looks like a small stream during heavy
rain but isn’t wet most of the time) and small wetlands. This proposed rule would
expand their regulatory authority under the Clean Water Act (CWA) to many of these
land features and waters, giving the agencies the power to regulate or prohibit landuses and farming practices in or near them. The rule would make it more difficult to
farm or change a farming operation to remain competitive and profitable.
USEPA and Corps jurisdiction under the proposed rule would apply to:
o Seasonal and rain-dependent streams
o Adjacent streams and wetlands that feed those streams
o Isolated wetlands or “other waters” with a “significant nexus”
“WOTUS” definition pervasive throughout the Clean Water Act: 402 (NPDES) permits,
404 (Dredge and Fill) permits, Water Quality Standards, TMDLs, SPCC rules, etc. Would
allow for USEPA to overstep Illinois EPA programs, and allow for citizen lawsuits.
We all know water is regulated, currently by the state in most situations, but this is
federal regulation over land that is mostly dry – land use!
There are exclusions, but would take a scientist to determine whether any feature
would qualify for exclusion.
USEPA currently taking public comments on the proposed rule. Deadline is October 20,
2014.
USEPA has been making a very concentrated PR effort to publicize how this rule is a
good thing for agriculture.
At the same time as proposed rule announced, also announced interpretive rule
granting farmers over 50 exemptions for conservation practices.
Have had these exemptions for decades, but now would need to follow NRCS standards.
o Only exempt from 404 “dredge and fill” permits.
o Do not apply to new/expanding farms.
o “game changer” for agriculture
Working with other agricultural groups in Illinois to educate members on the issues
associated with the proposed rule. Probable meetings the week of August 4th.
Would like to see farmers write individual comments opposing the rule.
For details, you can look online at AFBF’s “Ditch the Rule” campaign.
www.ditchtherule.fb.org or please feel free to contact Jim with more questions.
Tips for Drafting Individual WOTUS Comments
Identical comments are not as influential as personalized letters, so your comments will
have more effect if you can add details of the impact the proposed rule will have on your
farm.
 Feel free to write as much or as little as you would like. Because this is such an
important issue for you and for agriculture, please take time to say what you have
to say.
 Introduce yourself. How long have your farmed in your area? If your know it,
what is the closest traditional navigable water to your farm? Write about your
operation and your commitment to clean water. Do you participate in voluntary
conservation programs? If so, discuss what you have done to protect water in your
watershed.
 Explain the features on your land. How does water drain off your land? Do
you have ponds, ditches, tilled fields or grassed waterways on your land? If so,
tell EPA you cannot imagine how any of these features can be considered
navigable waters. EPA proposes to regulate most ditches, small and remote
“waters” and ephemeral drains where water flows only when it rains. Many of
these areas are not even wet most of the time and look more like land than like
“waters.”
 React to the ridiculousness of considering water moving across your fields and in
roadside ditches being regulated as waters of the U.S.
 Express your concerns about how your farm may be impacted if the EPA is
allowed to claim jurisdiction over ditches and washes on your land. Clean Water
Act jurisdiction could result in severe restrictions on your farming —or even
prohibit farming activities in or near ditches, washes or isolated “wetlands.
Farmers will face roadblocks to ordinary land-use activities - like fencing,
spraying for weeds or insects, discing or even pulling weeds.
 Tell EPA that you believe they are overstepping the legal authority granted to
them under the Clean Water Act and that they are ignoring the Supreme Court.
How To Submit Your Comment
Submit your comments before the October 20, 2014 deadline, identified by Docket ID
No. EPA-HQ-OW-2011-0880, by one of the following methods:
 Federal e-Rulemaking Portal: http://www.regulations.gov Follow the instructions
for submitting comments.
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Email: ow-docket@epa.gov. Include EPA-HQ-OW-2011-0880 in the subject line
of the message.
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Mail: Send the original and three copies of your comments to: Water Docket,
Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue
NW., Washington, DC 20460, Attention: Docket ID No. EPA-HQ-OW-20110880.
Suggested Beginning Text for Individual WOTUS Comments
[INSERT DATE]
Environmental Protection Agency
Water Docket
Mail Code 2822T
1200 Pennsylvania Avenue NW
Washington, DC 20460
RE:
Comments on the U.S. EPA and U.S. Army Corps of Engineers Proposed Rule
Regarding Definition of “Waters of the U.S.” Under the Clean Water Act
Docket No. EPA-HQ-OW-2011-0880
To Whom it May Concern:
I am a farmer, and I am writing to submit comments to the United States Environmental
Protection Agency and the United States Army Corps of Engineers proposed rule
regarding the definition of “Waters of the U.S.” under the Clean Water Act.
The proposed rule would significantly expand the scope of navigable waters subject to
Clean Water Act jurisdiction by regulating small and remote waters – many of which are
not even wet or considered waters under any common understanding of that word.
[INSERT YOUR SUBSTANTIVE COMMENTS]
The proposed rule does not provide clarity or certainly as EPA has stated. The only thing
that is clear and certain is that, under this rule, it will be more difficult to farm, or make
changes to the land – even if those changes would benefit the environment. I work to
protect water quality regardless of whether it is legally required by EPA. It is one of the
values I hold as a farmer.
Farmers like me will be severely impacted; therefore, I ask you to withdraw the proposed
rule.
Sincerely,
[INSERT YOUR FIRST AND LAST NAME, HOME TOWN AND STATE]