Farmers are wondering how and when the final Waters of the U.S. (WOTUS) rule will affect them. Legislation and pending litigation along with questions about how these overreaching rules will be implemented leave farmers with no clear idea of what to expect.
The rule clarifies what bodies of water the U.S. Environmental Protection Agency (EPA) would have jurisdiction over as part of the Clean Water Act.
The House of Representatives voted to prohibit the EPA from enacting the rule and as of press time, a similar bill was moving through the Senate.
Under the final rule, the definition of “tributary” was broadened to include landscape features that may not be visible to the human eye or that existed historically but are no longer present. There is now no need for the presence of an actual bed, bank and ordinary high water mark to be labeled a tributary but only the “presence of physical indicators” of them. That means a federal official in an office could use remote sensing, mapping information and other desktop tools to establish the presence of a tributary that may not even be visible to landowners standing next to it. The rule also allows federal officials to regulate land areas where desktop tools indicate ephemeral tributaries used to be present.
The final WOTUS rule makes it difficult for landowners to know which ditches are excluded from being regulated. The only way a ditch is excluded is if the landowner can show it isn’t a relocated tributary and isn’t excavated in a tributary, according to AFBF. Because the exclusion is tied to determining the existence of historic ephemeral tributaries, it is difficult for landowners to know which ditches are excluded.