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Exotic Wildlife Association
Legislative Update
June 24, 2015 
 

 

The EWA has had several inquiries from members across the country, who want to know what is happening with the rule on Water of the United States or (WOTUS).  Please read below a summary of the final rule.

 

From the analysis of the attorneys of the American Farm Bureau Federation (AFBF), we have now learned that the final rule is even worse than the proposed rule and creates, for farmers and ranchers,  more risk than was previously thought. Below is a summary and analysis of the final rule. There are several remedies to stop the implementation of the final rule, which are to defund the rule and stop its implementation through the appropriation process, pass stand-alone legislation like S.1140, or file a lawsuit which is an expensive and lengthy process with doubtful results.

 

The Exotic Wildlife Association will be working closely with other organizations on this issue. We will keep you posted.  Should any member want more detail than this summary provides, you can contact the EWA office and these documents will be emailed to you.

 

Summary: Final rule on Water of the United States (WOTUS)

 

Category Current Rule Finalized New Rule
Definition Water of the US Navigable waters that susceptible to use in interstate or foreign commerce It broadens the category to any water that may or may have affected commerce.
Other Waters Defines “other waters” as water that could affect commerce Does not define “other waters” and states that water can still be deemed a WOTUS through a “case-specific” analysis. The analysis can be done with desktop tools, meaning that even dry land, if by computer analysis looks it can have a water flow, may be deemed water of the U.S.
Tributaries They are clearly and strictly defined Tributaries are defined as: “presence of physical indicators” of a bed of water;

 

through “desktop tools” such as aerial photos, remote sensing or mapping information, light detection and ranging (LiDAR) data, NRCS soil surveys, state or local stream maps, stream gage data, historical water flow records, etc.:

 

flows across land, even with very small volume, frequency, and duration of flow;

 

Waters within 4,000 ft. from any tributary (“The agencies have determined that the vast majority of the nation’s water features are located within 4,000 feet of a covered tributary, traditional navigable water, interstate water, or territorial sea.”)

 

Adjacent waters They are clearly and strictly defined; wetland especially when they are directly “bordering, contiguous, or neighboring” navigable waters. Expands adjacent category beyond just “wetlands” to any type of water, such as lakes, oxbows, and impoundments. Many waters previously considered to be isolated (e.g., on farmlands, industrial sites, etc.) will be jurisdictional “adjacent” waters unless they meet one of the narrow exclusions.

Because these adjacent waters and tributaries can now be determined just by “desktop tools,” it will be virtually impossible to know what waters are categorically considered as “adjacent” and therefore under jurisdiction. Also, adjacent waters are those that fall in the 100-year flood plans, but those plans are not always available or may be outdated and not accurate. Landowners cannot possibly be expected to know whether a water on their property is “adjacent” by virtue of being within the 100-year floodplain and less than 1,500 feet from jurisdictional waters. Furthermore, just because such waters are not “adjacent” does not mean they are not jurisdictional; they can still be defined as tributaries

Ditches Current rule does not include ditches. Ditches are expressively mentioned in the definition of tributaries. It will be difficult for a landowner to determine in the field whether a given ditch is a tributary. Irrigation ditches that flow perennially or intermittently are likely to be jurisdictional; a ditch that touches a wetland, even if it does not receive much flow, can be jurisdictional, if the wetland is not jurisdictional, the ditch is not jurisdictional either.
Artificially irrigated areas They are not included in current rule  “Dry land is not defined because it is based on 30 years of practices and implementation; it cannot be defined also, according to the agency, because there is “no agreement upon definition given geographic and regional variability.” Furthermore “desktop tools” may be used to claim that a patch of land was not at one time “dry land” Therefore artificially irrigated areas cannot be defined.

 

Artificial Lakes and Ponds Not included in current rule Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds are excluded from the rule. However, because there is no clear definition of what is dry land making the rule unclear about ponds. Ponds must not be exclusively used for ag to be excluded; The agency gives the list of types of multipurpose ponds excluded from the rule, but it is “illustrative,” not “exhaustive”
Small ornament water and incidental water-filled depressions Not mentioned in current rule In the final rule it is difficult to determine if they are excluded because it is difficult to prove that they are created in “dry land”
Erosional features: Not mentioned in current rule Erosional features will not be excluded if they meet the tributary definition (that is, if desktop tools can find “indicators” that make it a current or historical tributary)

 

 

Respectfully submitted by your EWA Legislative Committee,

Marida Favia del Core Borromeo, Chairman

Terry Caffey, Gib Lewis, Todd Franks,
Chas. Schreiner IV, Bruce Fairchild