Comments show disproval of WOTUS proposal

NCBA, NACD file comments in opposition to proposed Waters of the U.S. rule.

The public has until November 14 to comment on the proposed Waters of the U.S. rule. This week official comments were filed by major organizations and others are encouraging their members to file comments discussion the impacts of the proposed rule which would increase the Environmental Protection Agency’s jurisdiction of U.S. waters.

The National Association of Conservation Districts (NACD) filed submitted comments Oct. 30 expressing concerns and requesting additional clarification on the definitions of tributaries, adjacency, other waters, and significant nexus.

NACD said as drafted, the proposed rule would substantially expand CWA jurisdiction, granting EPA and USACE broad authority and discretion to regulate wetlands and other water bodies remote from traditionally navigable waters.

After completing an economic analysis, EPA and USACE have estimated the rule would result in a 3% increase in CWA jurisdiction. The amount of expansion is difficult to predict with any meaningful precision; however, if the rule were to encompass all adjacent waters and most isolated wetlands and ditches, NACD estimates it would be significantly greater than 3%. Regardless, even a 3% increase in jurisdictional areas would be significant, considering the total number of acres affected and the associated potential economic impacts, NACD said.

NACD supports the decisions of the Supreme Court to leave the management of non-navigable waters in the hands of landowners and local governments. For more than 75 years, conservation districts have been leaders in locally-led efforts to ensure a clean and sustainable water supply for the nation.

"It is our philosophy that an ounce of prevention is worth a pound of cure," said NACD President Earl Garber. "Less-costly preventative measures are being implemented on the ground every day due to voluntary and incentive-based conservation practices."

An expansion of CWA jurisdiction would take away from the current voluntary approach to conservation, which promotes collaboration in a large-scale manner, NACD said. Any attempt to clarify CWA jurisdiction should be subject to local input, in order to develop effective parameters, criteria, and standards that successfully meet specific local needs. No final ruling should be employed until EPA and USACE have successfully vetted and approved clear provisions that are predictable when applied on the local level, the group noted.

The National Cattlemen's Beef Assn. and the Public Lands Council also officially filed comments calling for the immediate withdrawal of the rule.

“The proposed rule places no limit on the federal government’s authority over water, violating the Clean Water Act as articulated by the Supreme Court, and will eviscerate over a century of settled water law in much of the country,” said Dustin Van Liew, Public Lands Council executive director. “Contrary to the agencies' claims, the exclusions and exemptions in the proposal are unclear and provide the livestock industry no certainty.”

“The agencies’ proposal jeopardizes private property rights and violates Supreme Court precedent by subjecting nearly all waters to regulation,” said NCBA Environmental Counsel Ashley McDonald.

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