WOTUS Comment Extension Sought

Ag Groups Tell EPA to Leave Trump Water Rule in Place

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Agriculture groups are submitting comments to EPA ahead of a rewrite of the Navigable Waters Protection Rule. (DTN photo by Mary Kennedy; illustration by Nick Scalise)

LINCOLN, Neb. (DTN) -- Agricultural interests want EPA to leave the Trump water rule in place and many have asked the agency for an extension of a public-comment period that ended Aug. 31 ahead of a rewrite of the rule.

While a number of agriculture groups provided detailed comments about their positions on a new rule, many ag interests told the agency a 30-day comment period was inadequate to address myriad issues.

EPA told DTN on Tuesday it was reviewing the requests for an extension of time and "will share an update when available."

Requests for more time came from the Agricultural Retailers Association, some members of Congress, New Mexico Farm and Livestock Bureau, North Carolina Farm Bureau Federation, Michigan Farm Bureau, Georgia Chamber of Commerce, Alabama Farmers Federation, California Farm Bureau and the Fertilizer Institute, among others.

A federal court in Arizona recently vacated the Navigable Waters Protection Rule, https://www.dtnpf.com/….

"ARA (Agricultural Retailers Association) believes the current 30-day comment period is woefully inadequate for all interested stakeholders to provide the type of in-depth input the agency needs," the group said in an Aug. 17 letter to EPA.

"EPA Administrator (Michael) Regan, other EPA and U.S. Army Corps of Engineer officials have publicly committed before Congress and other public forums to conduct robust stakeholder engagement as it undertakes this rulemaking process. The scope of jurisdiction under the CWA is fundamentally important to ARA's members, their farmer customers, and all other impacted agricultural industry stakeholders."

In a letter to EPA, Reps. Sam Graves, R-Mo., and David Rouzer, R-N.C., also requested an extension, saying EPA's decision to host meetings within "such a short timeframe on a wide range of topics is indicative of a rushed, insincere notice-and-comment process by this administration.

"A mere single month of public meetings is a woefully insufficient amount of time to collect meaningful input on a regulation that will have a profound, long-term impact on the everyday lives of American farmers, businesses, families, and our environment," they said.

"We urge the agencies to implement a robust operation to effectively collect meaningful stakeholder outreach, as public input from stakeholders who will be most affected is crucial to any transparent rulemaking process."

When the Biden administration announced plans earlier this summer to rewrite the Trump administration's Navigable Waters Protection Rule, EPA Administrator Michael Regan said in a news statement the Trump rule -- widely supported by agriculture interests -- was "leading to significant environmental degradation."

The agency pointed to "lack of protections" in arid states like New Mexico and Arizona, "where nearly every one of over 1,500 streams assessed has been found to be non-jurisdictional. The agencies are also aware of 333 projects that would have required Section 404 permitting prior to the Navigable Waters Protection Rule, but no longer do."

In its comments to EPA, the American Farm Bureau Federation and a number of other ag groups signing onto the comments, said the agency was relying "heavily on anecdotal and often speculative assertions" when declaring the Navigable Waters Protection Rule as harmful to the environment.

"There are many reasons why the agencies may have made more 'non-jurisdictional' findings during the first year of NWPR implementation compared to any given year under prior rules," AFBF said in its comments.

"For instance, given the NWPR's clearer definitions and elimination of case-specific assertions of jurisdiction, the agencies may have front-loaded the clearest cases of no jurisdiction."

GROUPS QUESTION NEED FOR REWRITE

AFBF said the agencies place "heavy emphasis" on a list of 333 projects that would have required a Section 404 permit with prior water definitions, but no longer require a permit with the Trump water rule.

"At bottom, the agencies appear to assume that narrower federal jurisdiction means a complete lack of water quality controls and that third parties will rush to pollute water features that are no longer jurisdictional, without any state oversight and in quantities that will rapidly impair downstream features," the AFBF said.

"This is pure conjecture. Importantly, the agencies overlook that federal protections remain in place to prevent whatever destruction the agencies (or other stakeholders) seem to fear."

Signing on to AFBF's comments were the Agricultural Retailers Association, Florida Farm Bureau Federation, Illinois Corn Growers Association, Illinois Farm Bureau, Iowa Farm Bureau, Minnesota Agricultural Water Resource Center, National Association of Wheat Growers, National Council of Farmer Cooperatives, National Cotton Council, National Milk Producers Federation, National Pork Producers Council, the Fertilizer Institute and United Egg Producers.

The groups reiterated their support for the Trump water rule, saying they "feel strongly that the NWPR was a clear, defensible rule that appropriately balanced the objective, goals, and policies of the Clean Water Act. We would have liked to see the agencies keep the NWPR in place, rather than revert to definitions of WOTUS that test the limits of federal authority under the Commerce Clause and are not necessary to protect the nation's water resources."

RICKETTS SAYS STATES BEST EQUIPPED

In comments to the agency, Nebraska Republican Gov. Pete Ricketts said states have "clear authority" and are "well equipped" to protect waters of the state.

"States are best positioned to manage the water within their borders because of their on-the-ground knowledge of the unique aspects of their hydrology, geology and legal frameworks," Ricketts said.

"As such, waters of the state such as agricultural waters including farm ponds, stock ponds and irrigation ditches, and man-made dugouts, pits and ponds used for irrigation, should be subject to the exclusive regulatory authority of the state.

"With those points in mind, Nebraska supports a definition of WOTUS that provides for limited federal jurisdiction by adopting a clear and predictable standard for state and federal governmental agencies."

The Missouri Corn Growers said in comments because farmers have day-to-day interactions with all types of water bodies on their farms it was important to have well-written definitions of waters.

"To this point, the definition for WOTUS can have a direct and profound effect on corn farmers," the group said.

"It is critical policy makers consider this issue carefully. The WOTUS definition must be grounded in reality and common sense, not political theater, more bureaucracy, or additional red tape. It is vitally important to corn farmers there be clarity and certainty within the federal definition of WOTUS. MCGA believes the 2020 NWPR rule struck a good balance between providing protection of the nation's waters, providing clarity and certainty all while respecting landowner property rights."

The Georgia Farm Bureau wrote in comments the Biden administration's decision to rewrite the definitions comes at a challenging time for agriculture.

"Most were discouraged by the announcement, understanding that it meant the rules were changing again, with most believing it is simply because a new administration was taking over," the Georgia Farm Bureau said.

"As you all know, farmers are dealing with massive amounts of uncertainty right now, and much of that is outside of their control and some of it is outside of the federal government's control. However, whether to change the rules under the Clean Water Act is a discretionary decision being made by this administration, and most of our members feel as though this new regulatory action is unnecessary given the quality and clarity of the 2020 Navigable Waters Protection Rule."

The North Dakota Corn Growers Association expressed concern a new rule would return to what the 2015 WOTUS rule represented.

"Most farmers and ranchers also believe the 2015 WOTUS rule was so overreaching it would have granted federal jurisdiction over virtually any waters, including farm ditches, drainage areas, agricultural ponds, and isolated wetlands -- and many land areas that only temporarily hold water," the NDCGA said.

"We believe the Navigable Waters Protection Rule effectively detailed what waters are not subject to federal control, including features that only contain water in direct response to rainfall; groundwater; many ditches, including most farm and roadside ditches; prior converted cropland; farm and stock watering ponds; and waste treatment systems. Therefore, it respected the primary role of states and tribes in managing their own land and water resources.

"We urge EPA and the Department of Army to craft a rule that provides states with regulatory flexibility based on local and current conditions, and better enables producers to care for their land."

Read more on DTN:

"EPA to Rewrite Trump Clean Water Rule," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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Todd Neeley