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Way back in 2016 I blogged the Obama Administration's 2015 Waters of the United States regulation that defines and controls the nation's navigable waterways under the Clean Water Act was a disaster.  

Within days of issuance of the final rule in the Federal Register disapproval came from every imaginable sector of agriculture.  And with good reason.  

Taken to a legal extreme, Obama's WOTUS would allow the Environmental Protection Agency to define navigable waters as including farmland drainage ditches, seasonal streams, tributaries and even puddle-like depressions. 

At the time folk at the EPA swore on their mother's eyes that they would NEVER consider a farmland drainage ditch as navigable.  But who really believed that?  

So it wasn't surprising that the legality of WOTUS has been a federal court bare knuckle brawl as I've documented over the years here, here, and here.

It's a tangled mess.

But clarity and some common sense may be on the way.  Late in January the EPA released a much anticipated replacement WOTUS.  The new rule will become federal law 60 days after it is posted in the Federal Register.  The pre-publication of the rule significantly narrows what waterways are considered navigable to include:

  • Territorial seas and traditional navigable waters
  •  Perennial and intermittent tributaries of such waters
  • Certain lakes, ponds, and impoundments of jurisdictional waters
  • Wetlands adjacent to other jurisdictional waters (other than waters that are themselves wetlands

It is the definition of wetlands that should be of particular interest to farmers. Only covered by WOTUS are adjacent wetlands that touch a territorial sea, traditional navigable water, tributary, lake, pond, or impoundment of a jurisdictional water. 

Wetlands without such geographical designation do not get CWA protection.  Excluded waters include groundwater, water flowing as a result of precipitation as well as most farm and roadside ditches, as well as artificial lakes and ponds (emphasis added).

As might be expected environmental types shirked foul. Earthjustice attorney Janette Brimmer claimed the sky is falling in saying “This all-out assault on basic safeguards will send our country back to the days when corporate polluters could dump whatever sludge or slime they wished into the streams and wetlands that often connect to the water we drink.

Is the new rule perfect?  No it is not. EPA's outside scientific advisers suggested the rule is in conflict with established science.  The rule may exclude too many wetlands as suggested the EPA's own estimates.

But there's no denying the 2015 WOTUS was heavy-handed making it just about impossible for producers to know which waters on their farms were regulated by the CWA. 

The degree to which the new rule clears up such uncertainties is a good thing. But likewise the new rule probably swings the pendulum too far the other direction in the name of deregulation. 

So you probably can guess where all this will be headed. See you in court.

About Dave Dickey

Dave Dikcey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for the Midwest Center covers agriculture and related issues including politics, government, environment and labor. His opinions are his own and do not reflect the Midwest Center for Investigative Reporting. Email him at dave.dickey@investigatemidwest.org.