What Does the WOTUS Rule Actually Do?
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Expands definition of tributary by broadening terminology and specifically adding new categories of tributaries like: ditches and
certain ephemeral water features.
o “ditch” is overly broad
o U.S. Supreme Court has stated at least seasonal flow is necessary for a water to be jurisdictional under the Clean Water
Act. Ephemeral and intermittent water features do not meet this threshold.
o While tributaries are considered “waters of the U.S.” EPA cannot by regulation merely add new waters to the definition
of tributary in order to gain jurisdiction over them.
Expands and considers automatically jurisdictional all “adjacent waters” as compared to U.S. Supreme Court to case law which
merely validated this jurisdiction over “adjacent wetlands.”
Adds to and broadens the test for determining adjacency beyond U.S. Supreme Court case law.
o Overly broad criteria for determining adjacency with terms like: 1) neighboring – which can include waters with a
shallow subsurface or hydrologic connections, 2) within the same riparian area – which looks at surface and subsurface
hydrology and plant ecosystems in the area, and 3) within the same floodplain – which does not have a defined flood
interval, but rather leaves this determination to the “best professional judgment” of the regulating agency.
o Completely removes and ignores the “significance” requirement or “degree of connection” part of the “significant
nexus” test when determining adjacency.
o Expands jurisdiction and violates states’ rights by including groundwater connections as jurisdictional under the
adjacency test.
Thwarts U.S. Supreme Court case law that applies the “significant nexus” test to “adjacent wetlands” and broadens this test to
also being determinative for when “any other water” may be a “water of the U.S.”
o Completely removes and ignores the “significance” requirement or “degree of connection” part of the “significant
nexus” test when determining adjacency.
Pre judges scientific evidence. The connectivity study that EPA bases this rule upon is still in the process of being peer-reviewed
by their own Science Advisory Board.
Our belief that through this jurisdictional rule there is no limit on EPA’s determination of what constitutes a “waters of the U.S.”
and therefore usurps all state authority.
Makes false claims of creating new “exemptions” for agriculture through a USDA/NRCS interpretive rule. The 56 practices listed
were already exempt from the Clean Water Act because they constitute “normal farming and ranching practices.” The
exemptions only apply to the 404 program (dredge and fill) and not 402 (NPDES). Plus, this interpretive rule is merely guidance,
has no force of law and can be changed at any time without notice thus not providing any legal protection or certainty.
The EPA WOTUS Rule is So Flawed It Should Be Withdrawn in Entirety. Key Flaws Include:
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Ditches should be removed from the definition of tributary as this term is overly broad and means very different things across
the country only generating more confusion.
Ephemeral, intermittent and less than perennial flow waters must be removed from the definition of tributary. The U.S.
Supreme Court has stated at least seasonal flow is necessary for water to qualify as a “water of the U.S.”
“Other waters” and “adjacent waters” should be subject to a case specific analysis of whether they qualify as a “water of the
U.S.” The U.S. Supreme Court has only said “adjacent wetlands” are automatically jurisdictional under the Clean Water Act.
Terms such as “neighboring”, “riparian area” and “floodplain” need to be further articulated as they currently overbroad.
Any mention of groundwater, subsurface connections, needs to be removed. The Clean Water Act in its text specifically
precludes EPA from regulating groundwater except under the Safe Drinking Water Act parameters.
A degree of “significance” measurement must be added to the “Significant nexus” test as required by the U.S. Supreme Court.
Withdraw in its entirety the USDA/NRCS interpretive rule as these practices were already exempt and the rule provides no legal
protection or certainty for agriculture.
Republish the rule as a proposed rule at a later date, taking in to account recommendations that are certain to be made on the
scientific evidence underlying this rule which is currently still in the process of being peer reviewed.