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Todd Sheppard

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Trump “re-codification” of WOTUS fails to clear up or change Clean Water Act confusion or regulation. Farmers, property owners left in limbo


Comments on he re-codification are open for 30 days, at “Waters of the United States” – Reinstatement of Preexisting Rules — Docket ID No. EPA-HQ-OW-2017-0203


The  “re-codification” of pre-existing rules for “Waters of the United States” (WOTUS) announced yesterday by the U.S. Army Corps of Engineers (CoE) fails to clarify the existing confusion over regulation of the Clean Water Act or the extent of how far from navigable waters the CoE’s jurisdiction extends.


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According to the document, it was written to clarify a previously proposed clarification known as the 2015 Clean Water Rule, which was stayed by a Federal Appeals Court. The court-ordered stay of that rule did not affect any federal regulatory action before or after the stay. This article offers some additional background on the 2015 rule.


While Wine Industry Insight has not had opportunity to thoroughly examine the document,  it’s clear that the CoE is determined to make sure that nothing will change its current regulatory practices or anything that could affect a number of current prosecutions such as those affecting nursery owner John Duarte.


According to the document:

‘The agencies would apply the definition of “waters of the United States” as it is currently being implemented, that is informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding practice.

‘Proposing to re-codify the regulations that existed before the 2015 Clean Water Rule will provide continuity and certainty for regulated entities, the States, agency staff, and the public. In a second step, the agencies will pursue notice-and-comment rulemaking in which the agencies will conduct a substantive re-evaluation of the definition of “waters of the United States”.’


Key among the retained policies is the concept of the Supreme Court’s “Nexus”  concept which extends the Clean Water Act’s jurisdiction over “navigable waters” to seasonal streams, dry creeks and other areas often many miles from waters that can, in fact, be navigated.




No specific definition exists — nor is one defined in the re-codification — to allow property owners to determine whether their property has a WOTUS nexus or not.

In Supreme Court testimony in  Rapanos v. United States, the CoE’s Inspector General Paul Clement stated (PDF) that dry roadside ditches, urban storm drains and similar areas capable of accumulating water were actually Waters of the United States.


In addition, the “re-codification” retains the CoE’s ability to eliminate farming exemptions on cropland which has not been recently cultivated  or which has been converted from one use to another (such as grazing to row crops or forests to vineyards).


The CoE and EPA have never defined “recently” in terms of a specific period of years that qualify for how many years that land has been fallow before it loses its farming exemption.


The loss of the farming exemptions means that plowing land becomes a point source of pollution and the dirt which is turned over in the process is the same as dumping dredged harbor spoils on the land.


According to the newly published “recodification,” nothing has changed with regards to that ambiguity.


The recodification states that, “Navigable waters do not include prior converted cropland.” But then goes on to hedge that statement (emphasis added): “Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.”


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