Input on WOTUS rule…?

DSC_0195Americans are encouraged to provide feedback and guidance on a proposed change in how the Nation defines, and therefore protects, our wetlands. The comment period ends on Tax Day (April 15). I hope you’ll have your say!

At issue is how to define “Waters of the United States” (WOTUS) which are the lakes, rivers, wetlands, and similar water bodies to be regulated by the Clean Water Act (CWA). President Trump ordered Federal agencies to look at the issue, and propose a new rule to define and regulate WOTUS. The proposed rule and related information, including how to comment on the proposed change, and the written public comments already received, may be found on-line at those links. Readers of this blog might very well wish to input on specifics of the proposal, or simply express support for a particular point of view regarding the issue. (All public input is solicited).

A consortium of nine different aquatic-related societies issued a statement in December about this proposed change. None other than Iowa State University Professor and past President of the Society of Wetland Scientists, Arnold van der Valk, is quoted in the statement:

“It will result in the loss of many of the nation’s wetlands. This decision is shortsighted and counterproductive. It will significantly reduce the multitude of ecosystem services that these wetlands currently provide us at no cost. As a result the taxpayers will have to pay to build elaborate and expensive infrastructure to replace these free ecosystem services, such as flood reduction
and cleaning up polluted water.”

…and he is 100% correct. This rule will result in the Nation losing many wetlands, and all the services they render.

I also recommend a New York Times article on the issue:

Regular readers of this blog have heard my thoughts on why wetlands should be protected, i.e. the various important work they do. New visitors (welcome!!) or those wishing a review might consider clicking on the “tags” in the sidebar for categories of “ecosystem services,” listed under Hydrology, Pollution, and so forth.

“But Paul,” you say. “How would a rewording of the definition of ‘Waters of the United States’ affect wetlands?” Because most of the wetlands in the USA will be protected (or not) through the Section 404 provision of the Clean Water Act. If wetlands are WOTUS, then the US Army Corps of Engineers must regulate their physical structure (“dredge and fill”) and the EPA must regulate their water quality. But if wetlands are not WOTUS, then…individual States may choose to protect them, or not.

DSC_0235Supposedly this new rule will “…increase predictability and consistency…” of wetlands regulations, and that certainly sounds appealing. But actually, since 1986 the Federal government has had a Rule about WOTUS that was, more or less, consistent and effective. In 1987, the Corps of Engineers published a Manual for determining what is/is not (i.e., delineating) a wetland based on that Rule. Although an Obama-era rule tweaked it slightly, the 1987 Manual, and the Rule it’s based on, has worked just fine. That’s over 30 years of practice—and this new Rule proposes to stick to it, with an important difference: adjacency.

The new Rule would require a wetland (as defined by the 1987 Manual) to be physically adjacent (“abut”), and connected to, a surface water body relating to other WOTUS (“jurisdictional waters”). In other words, a wetland must have a surface flow (in or out) connecting to a stream, river, lake, or other waterway already considered a WOTUS. That surface water flow or connection must exist in a “typical year,” not just a year with high water (i.e., flooding conditions).

I admire the honesty of frank statements in the Federal Register regarding what this rule is designed to do: eliminate protection for all wetlands not linked by a surface water flow to other WOTUS. Here are specific quotations:

(the proposed rule) would exclude isolated wetlands with only physically remote hydrologic connections to jurisdictional waters. Under the proposed definition, ecological connections alone would not provide a basis for including physically isolated wetlands within the phrase “The Waters of the United States.”

(the proposed definition) of “adjacent wetlands” and the categorical treatment of jurisdiction over wetlands adjacent to tributaries as proposed in informed by, though not dictated by, science.

Wetlands separated from other “waters of the United States” by upland or by dikes, barriers, or similar structures would not be adjacent and would not be jurisdictional wetlands under the proposed rule…

That last one is interesting. Several statements in the proposed Rule seem to suggest that even a wetland physically adjacent to a stream or lake will not be regulated, as long as you put up a barrier (like an earthen dam or berm) between the wetland and the adjacent WOTUS. You could even put in a pipe or culvert (because the wetland is so very wet…) and yet it’s no longer, legally, a wetland.

DSC_0119I encourage you to read the proposed Rule yourself, and/or those analyses linked above. And then, please consider weighing in with a comment on the proposed Rule. As you might expect, I plan to do so. This is a time we need to speak up. Our Government needs to know that we value wetlands (whether they do, or not). We must remind our public servants that whether a wetland is physically adjacent to a stream or not, it nevertheless DOES affect the hydrology of that stream. The wetland absorbs water that otherwise (even if by groundwater, rather than a surface connection) would contribute to downstream flooding. The wetland improves the water quality of the downstream WOTUS. So-called “isolated wetlands” simply aren’t isolated, and they do important work…but only if we allow them to exist!!

And beyond reacting to this specific government action, I hope we can think about the long-term future of our wetlands. Personally, I would like our Nation and its government to provide effective and uniform legal protection for all of our aquatic resources, including wetlands. I certainly believe in making that task as straightforward as possible for everyone  involved: landowners, regulators, and environmental professionals. How do we serve our citizens best? Protecting wetlands is surely part of that…so how do we get it done??

Author: Paul Weihe

Associate Professor of Biology at Central College, traditional author (Textbook of Limnology, Cole & Weihe, 5th ed.; Waveland Press), and now...blogger!

5 thoughts on “Input on WOTUS rule…?”

  1. I follow the dealings of a certain large Iowa agricultural-industry advocacy organization. That organization, via their website, is very strongly urging all their members to submit comments talking about how much they love this new proposed WOTUS rule, and the website specifically says, “DON’T LET THE ACTIVIST OPPONENTS DROWN OUT OUR VOICE!”

    I’ve never thought of Professor van der Valk or the author of this blog or other wetland experts as “activist opponents” of anything. In this case, the wetland experts are “actively” advocating for science, common sense, and our common welfare and future, among other things. I am very grateful and will try to add my voice.

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    1. I’ve appreciated your comments and questions, Cindy (keep it up!). Regarding agriculture, that’s quite a remarkable stance they’re taking, because land in production before 1985 is exempt, and so it’s going to be only the really wet spots remaining…not exactly prime farmland I should imagine.

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      1. Thanks very much, Paul. Here is what’s on their website. I won’t comment because I’m certain your comments would be much better. From what I’ve seen in other ag-media contexts, “crop protection compounds” basically means “pesticides.”

        ***

        Farmers should be able to look at the land and know what is and what is not federally regulated under the Clean Water Act. The proposed new water rule will make it clear and specific for farmers to understand and follow. The new Clean Water Rule will end years of uncertainty. #CleanWaterClearRules.

        If a water is federally regulated under the Clean Water Act, applying crop protection compounds or crop nutrients to a field may require a federal permit. Moving dirt or removing trees may also require a federal permit or interfere with adding new conservation practices. Because of the potential for large federal government fines (up to $51,570 per day), it is important to be able to tell the difference between land and a jurisdictional federal water.

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      2. Hmm. So perhaps they are implying that practices like aerial spraying can pass over wetlands, illegally introducing the chemicals into them, and so simply excluding them from WOTUS, it makes things easier? And likewise for plumbing or tree management and so forth can inadvertently impact wetlands, so excluding them is better? This is an interesting point, because when I ask “why would a farmer take out that little wetland there, when it can’t possibly properly grow a crop?” and the answer is “no, don’t expect it too. It’s just in the way—and need to run a big machine across that field.”

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