Your Questions Answered on Waters of the US Rule

You have questions, we have (some) answers! There’s been a lot of confusion and misinformation about the Waters of the US proposed rule. If you have other questions, we’d love to hear them!

Why is the Environmental Protection Agency (EPA) doing this rulemaking?
EPA’s job is to protect our nation’s water for everyone. The Clean Water Act, in place since the 1970’s, prohibits the discharge of pollution or dredge/fill material into “waters of the United States” without a permit. EPA is proposing changes to provide clarity to regulators and the regulated community regarding which bodies of water are subject to EPA’s jurisdiction, and which activities require a permit.

What do the rule changes look like?
Here’s where it gets a little wonky. Right now, the Clean Water Act regulates:

  1. Traditional navigable waters;
  2. Interstate waters; and
  3. All other waters that could affect interstate or foreign commerce, impoundments of waters of the U.S., tributaries, the territorial seas, and adjacent wetlands.

The new definition states that waters of the US includes:

  1. Traditional navigable waters;
  2. All interstate waters, including interstate wetlands;
  3. The territorial seas;
  4. All impoundments of water identified in 1 – 3 and 5;
  5. All tributaries of waters identified in 1 – 4;
  6. All waters, including wetlands, adjacent to a water identified in 1 – 5; and
  7. On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, significantly affect the chemical, physical, or biological integrity of a jurisdictional water identified in 1 – 3.

Point #7 is meant to cover bodies of water such as the Prairie Pothole region in the Dakotas, which are important to the ecosystem of the area and don’t necessarily connect to other water due to the nature of this unique landscape. The EPA wants to make sure that someone doesn’t fill or pollute them.

Does the proposed rule regulate ditches?
Well, is the ditch a tributary? Tributaries are defined as a body of water with a bed, banks, and an ordinary high water mark, and which contributes flow, either directly or through another water, to a jurisdictional water. Tributaries are covered under the proposed rule, but if a ditch does not match the definition of a tributary, it’s not covered. 

The proposed rule expressly excludes two types of ditches:

  1. Ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow; and
  2. Ditches that do not contribute flow, either directly or through another water, to jurisdictional water.

What happens if I have jurisdictional water on my farm or ranch?
If you have a jurisdictional water on your farm, then you might need a permit before engaging in certain activities.

Does the Center have concerns about the rule?
Sure. No rule is perfect, and it’s our duty as citizens to engage with our government, let them know the mistakes they made, and work with decision makers to find a solution.