WOTUS Comments Submitted

The NCC submitted comments to EPA and the Army Corp of Engineers in response to these agencies’ last proposal on the 2015 “Waters of the U.S.” (WOTUS) rule – a proposal from August 28 requesting recommendations for revisions to the WOTUS definition under the Clean Water Act.

Published: December 1, 2017
Updated: December 1, 2017

November 28, 2017

Department of the Army, Corps of Engineers (COE), Department of Defense; and, Environmental Protection Agency (EPA).

RE:  Docket ID No. EPA–HQ–OW–2017–0480:  Definition of ‘‘Waters of the United States’’—Pre-Proposal Outreach Comments

The National Cotton Council (NCC) is the central organization of the United States cotton industry.  Its members include producers, ginners, cottonseed processors and merchandizers, merchants, cooperatives, warehousers and textile manufacturers.  A majority of the industry is concentrated in 17 cotton-producing states stretching from California to Virginia. U.S. cotton producers cultivate between 9 and 12 million acres of cotton with production averaging 12 to 18 million 480-lb bales annually. The downstream manufacturers of cotton apparel and home furnishings are located in virtually every state. Farms and businesses directly involved in the production, distribution and processing of cotton employ more than 125,000 workers and produce direct business revenue of more than $21 billion.  Annual cotton production is valued at more than $5.5 billion at the farm gate, the point at which the producer markets the crop.  Accounting for the ripple effect of cotton through the broader economy, direct and indirect employment surpasses 280,000 workers with economic activity of almost $100 billion. In addition to the cotton fiber, cottonseed products are used for livestock feed and cottonseed oil is used as an ingredient in food products as well as being a premium cooking oil.

The National Cotton Council supports rescinding the 2015 Waters of the U.S. Rule because it is inconsistent with Supreme Court precedent, expands federal jurisdiction beyond measure into geographical features which are demonstrably not “waters” in any sense of the word, opens up farmers to huge liability for common agricultural practices, fails to preserve the States’ authority to regulate non-navigable waters, and fails to provide needed clarity and certainty for both regulators and the regulated community.  However, as the Environmental Protection Agency and the Army Corp of Engineers (EPA, ACOE) draft a replacement, there are certain errors from previous regulations that need to be avoided or addressed in the new rulemaking.

First, the overly broad definitions including those for the terms “tributary,” “adjacent,” and “significant nexus” did not add clarity to the 2015 rule which was intended to provide clarity.  Instead it made it practically impossible for a farmer to know how an agency regulator would determine possible water features on the farm.  For example, “significant nexus” had a definition referring to nine factors that could be used to determine a nexus to downstream navigable water.[1] One of these factors was, “provision of life cycle dependent aquatic habitat” which sounds suspiciously like a statement in the Supreme Court-invalidated Migratory Bird Act which used birds that depended “upon aquatic environments for a significant portion of their life requirements” as a basis for federal jurisdiction of waters.  The agencies went further to state that a water didn’t need to perform all nine factors in order to be declared to have a significant nexus and therefore be jurisdictional.[2]

The adjacency/neighboring definitions referred to the 100-year floodplain.  The agencies stated they would rely on updated and outdated FEMA Flood Zone maps, modeling and other tools to determine nexus. Under this approach, there is no way for a landowner to know if they are jurisdictional or not, or be able to challenge a determination.

The definition of tributary depends on the presence of an “ordinary high water mark” (OHWM).[3]  The OHWM can be determined by agency personnel using desktop analysis, remote sensing, historical records, etc.[4]  Once again, this action doesn’t allow the landowner to know whether features are jurisdictional or have a chance to challenge a decision.  If the agencies want to regulate to this degree, then they owe it to the landowner to make field-level determinations.

In addition, manmade ditches (roadside, agricultural, etc.) are not tributaries. WOTUS’ overly broad definition of tributary made any ditch a jurisdictional water.[5]  This encapsulation of ditches into federal jurisdiction cannot remain in the final rule.

Second, the 2015 rule trespassed upon the state’s rights to regulate water and land resources within their individual state.  Congress spoke of state authority in section 101(b) of the Clean Water Act (CWA) when they stated the need to “recognize, preserve, and protect the primary responsibilities and rights of States.”  This action is a basis of a challenge to the rule by 31 states.[6]  Under the 2015 Rule, the federal government can assert jurisdiction over intrastate land and water features that are miles away from any navigable-in-fact waters and that carry flow only after precipitation events.

Third, the slow creep of reducing and removing (whole or in case-by-case determinations) the Section 404(f)(1) exemptions for normal farming practices must stop and the exemptions regain their historical meaning.  Intertwined with this, the EPA and ACOE must recognize farming practices and conservation efforts deemed appropriate by other federal agencies.   It is inappropriate to enforce against a landowner for recognized farming and conservation practices such as planting a cover crop, rotating crops, fallowing land, or alternating between land management practices for crops and livestock.

Fourth, WOTUS was titled as a definition, however the rule imposed limitations and required permits.  The agencies need to actually and succinctly define waters of the U.S. and/or navigable waters once and for all, in a clear and concise manner that is easily understandable to landowners and other stakeholders.  The final definition should be clear and concise and not based on subjective characteristics or variable precedents set by case-by-case determinations of the past.

In order to provide clarity and certainty to stakeholders, the definition of waters of the U.S. must focus on traditional navigable waters first with emphasis on nearby water feathers that directly affect traditional navigable waters.  Federal jurisdiction should not cover non-navigable waters with no significant connection to navigable waters.  Jurisdiction should not extend to isolated waters and wetlands and intrastate waters that are the rightful jurisdiction of the state.  Federal jurisdiction should not extend to normally dry features.

The definitions within any new rule must be specific and, as much as possible, not open to variable interpretation.  They must also be reasonably narrow and not so broad as to encompass every low area that might transport precipitation.

Codified exclusions and exemptions such as those for agriculture must be retained in their historical meaning.  Additional exemptions may be necessary to clarify and protect the right to farm.  The agencies must also work with other federal agencies to ensure that they do not work at cross purposes and that the EPA and ACOE do not enforce against stakeholders that complied with instructions of another federal agency.

State authority must be maintained.  Their jurisdiction over certain waters and water quality programs should not be usurped by federal overreach.

The National Cotton Council appreciates the opportunity to comment now and in the future on this critical rulemaking that has far-reaching and significant implications across all of agriculture.  Please contact us with any questions or for further clarification and input.


Steve Hensley
Senior Scientist, Regulatory and Environmental Issues
National Cotton Council

[1] 33 C.F.R. § 328.3(c)(5)

[2] 80 Fed. Reg. 37,091

[3] 33 C.F.R. §§ 328.3(c)(3), 328.(c)(6);

[4] 80 Fed. Reg. 37,077

[5] 80 Fed. Reg. 37,105

[6] Opening Brief of State Petitioners, In re: EPA & Dep’t of Def., No. 15-3799, at 57-58 (6th Cir. filed Nov. 1, 2016)