Last December, the Environmental Protection Agency and the Department of the Army proposed a revised definition of “waters of the United States” with a goal of clarifying federal authority under the Clean Water Act and replacing the flawed 2015 rule. The agencies invited written pre-proposal recommendations and received submissions from AFBF, VAFB, and more than 6,000 other groups and individuals. The agencies took the many comments and recommendations under consideration, and, on February 14, 2019, the draft Clean Water Rule was publicly released.

The newly proposed rule presents a major step toward fair and understandable water regulation on America’s working lands. The previous rule would have treated much of the landscape as though it were water itself. That wasn’t just confusing for landowners, but also illegal, which is why federal courts blocked its implementation.

As we begin processing and digesting the new rule, we can already see that many of the previous rule’s problems have been removed or addressed. For example, ditches are now proposed not to be “waters of the United States” unless they meet certain criteria, such as functioning as traditional navigable waters, if they are constructed in a tributary and satisfy the conditions of the proposed “tributary” definition, or if they are constructed in an adjacent wetland and satisfy the conditions of the proposed “tributary” definition.

The rule also notes that “waters of the United States” do not include: features that flow only in response to precipitation; groundwater, including groundwater draining through subsurface drainage systems; certain ditches; prior converted cropland, and artificially irrigated areas that would revert to upland if artificial irrigation ceases.

The new rule also aims to clarify and define the term “prior converted cropland,” which has been excluded from the WOTUS definition since 1993 and would continue to be excluded. Under the proposed rule, prior converted cropland is considered abandoned if it is not used for, or in support of, agricultural purposes at least once in the immediately preceding five years. Agricultural purposes include land use that makes the use of production of an agricultural product possible, including, but not limited to, grazing and haying. This proposed rule would also clarify that cropland that is left idle or fallow for conservation or agricultural purposes for any period of time remains in agricultural use and, therefore, maintains the prior converted cropland exclusion.

You can read the full proposed rule in the Federal Register (FR). A 60-day public comment period is now open on the proposed rule and will remain open until April 15, 2019. We strongly encourage you to submit comments in support of the proposed rule, and share your personal story of how this will benefit your operation. Click Here to Submit Comments