WOTUS Rules Remain Muddy

OMAHA (DTN) -- Demonstrating to members of Congress how hard it is to get to know the new federal rules for enforcing Waters of the U.S. (WOTUS), a member of the American Farm Bureau Federation's government affairs team on Wednesday showed lawmakers 1,128 pages of a Freedom of Information Act (FOIA) request that was largely blacked out.

Courtney Briggs, a senior director of government affairs with AFBF and chair of the Waters Advocacy Coalition -- a collection of industry groups -- said agencies such as the Army Corps of Engineers and Environmental Protection Agency (EPA) are largely trying to ignore the 2023 Supreme Court case, Sackett v. EPA. The Sackett case curtailed federal agencies from regulating wetlands as waters of the U.S. unless the wetland is adjacent to a continuous body of water.

Farm Bureau and other business groups have been trying to get clear guidance from EPA and the Corps about how those agencies are implementing the new WOTUS standards set by the Supreme Court.

"They will not hand over the implementation guidance that is being disseminated to the Corps districts," Briggs said.

Guidance documents for the Corps' permits provided to the Waters Advocacy Coalition were heavily redacted with language not to share with the public, she said.

Briggs testified at a hearing Wednesday before the House Transportation and Infrastructure Subcommittee on Water about how the federal government and state regulators have responded to the Sackett cases.

Briggs said that right now there is no clear direction from EPA and the Corps about which water features are regulated by the federal government and which are left to states. Farmers are faced with a largely ambiguous regulatory regime. In her testimony, Briggs said EPA and the Corps have held listening sessions but offered no answers to questions about rules.

"They are not giving us a roadmap on how to follow the law," Briggs said.

The Clean Water Act has provisions exempting normal farming and ranching practices from needing a permit. One of the problems with the exemptions for farm practices is that agencies have often been too willing to take away those exemptions.

"No farmer has certainty using those exemptions, and unfortunately, we've seen farmers burned by Swampbuster and the Clean Water Act," Briggs said.

EPA issued a final "conforming rule" to the Sackett case a year ago, but did not provide more specific terms spelling out the scope of the federal government's authority. The new rule also appears to be broader than a rule written by EPA after a 2008 Supreme Court decision. For instance, the rule indicates fewer ditches would meet the standard for exclusion from a discharge permit.

"With this level of uncertainty, it's unfair to our landowners. And again, I just don't understand why the agencies won't come out and clearly tell landowners what the rules of the road are," Briggs said.

Fines for discharging without a permit can reach as high as $64,000 a day. Negligent violations of the Clean Water Act can also lead to up to a year in jail.

"I hear from people who have to walk away from projects, walk away from creating jobs in rural communities because of this regulation," Briggs said. "And frankly, this is one of those regulatory rule makings that makes the next generation of farmers not want to get into farming. So, there is a real ripple effect here that I think folks are failing to acknowledge."

Republicans criticized the Biden administration's lack of action, while Democrats argued that a critical tool for protecting and cleaning up waterways has been taken away.

Rep. Mike Bost, R-Ill. noted, "So here we are a year into the Biden administration's new WOTUS ruing and nothing's changed."

Rep. Hillary Scholten, D-Mich., talked about the risks of more pollution in the Great Lakes.

"The Sackett decision has undermined our ability in significant and meaningful ways to protect this precious, nonrenewable resource."

Emma Pokon, Alaska's commissioner for the Department of Environmental Conservation, also told lawmakers that a lot of the federal permitting requirements are implemented by the states. That's a major task in Alaska, which has 130 million acres of wetlands -- more than every other state combined. Despite that, Pokon said her agency hasn't been provided with more clarity from the Corps of Engineers.

"I haven't seen the guidance that has been provided to the Corps of Engineers," Pokon said.

Nicole Rowan, director of the water quality control division for the Colorado Department of Public Health and Environment, said there was more understanding of the rules for regulated industries before the Supreme Court's decision.

"I think returning to a pre-Sackett regime would provide a uniform level of protection across the United States. We have found that businesses and regulated entities really like certainty and especially when they are working across state lines," Rowan said.

Vincent Messerly, president of the Stream and Wetlands Foundation, which is made up of business stakeholder groups, also testified on behalf of the National Association of Home Builders. He was asked multiple times how much permitting costs add to inflation. He said permits can easily cost $75,000 to $100,000 for all that they require.

"Why the WOTUS definition is so contentious is the permitting program is broken, and the cost to comply with the permitting program is so excessive, so it's almost a death sentence when you get that notice that you have a water of the United States that you have to deal with," Messerly said.

Also see "Group of 26 States, Ag Groups Seek to End Biden WOTUS Rule in Court Cases" here: https://www.dtnpf.com/….

Chris Clayton can be reached at Chris.Clayton@dtn.com

Follow him on social platform @ChrisClaytonDTN

(c) Copyright 2024 DTN, LLC. All rights reserved.