Water Woes End

After years of legal battles, farm groups declare victory over Obama-era regulation.

EPA plans to finalize rules that provide less oversight of streams, ponds, lakes and wetlands. (Progressive Farmer image by Kurt Lawton)

Farm groups have declared victory after the Trump administration formally ended the 2015 Waters of the United States Rule (WOTUS).


EPA Administrator Andrew Wheeler, along with the Army Corps of Engineers, announced Sept. 12 the agencies would eliminate the controversial 2015 Clean Water Act rule drafted by the Obama administration. The 2015 rule greatly expanded EPA and Army Corps of Engineers regulatory oversight of streams, lakes, ponds and wetlands.


"Today, EPA and the Department of the Army [Corps of Engineers] finalized a rule to repeal the previous administration's overreach in the federal regulation of U.S. waters and recodify the longstanding and familiar regulatory text that previously existed," Wheeler said at an event hosted by the National Association of Manufacturers. "Today's Step 1 action fulfills a key promise of President Trump and sets the stage for Step 2, a new WOTUS definition that will provide greater regulatory certainty for farmers, landowners, home builders and developers nationwide."


The move follows through on a campaign promise by President Donald Trump, who criticized the 2015 Waters of the U.S. rule. Wheeler cited one of President Trump's earliest executive orders to peel back regulations on business as one of the key drivers for eliminating the rule.

INDUSTRY REACTION


Zippy Duvall, president of the American Farm Bureau Federation, says the 2015 rule was unreasonable and unworkable for farmers, and created liabilities for them.

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"No regulation is perfect, and no rule can accommodate every concern; but the 2015 rule was especially egregious," Duvall says. "We are relieved to put it behind us. We are now working to ensure a fair and reasonable substitute that protects our water and our ability to work and care for the land. Farm Bureau's multiyear effort to raise awareness of overreaching provisions was powered by thousands of our members who joined with an array of allies to achieve this victory for clear rules to ensure clean water."


Jennifer Houston, president of the National Cattlemen's Beef Association (NCBA), says the Waters of the U.S. rule "was an illegal effort by the federal government to assert control over both land and water, significantly impacting our ability to implement vital conservation practices."


Houston adds, "Cattle producers will sleep a little easier tonight knowing that the nightmare is over. Thanks to President Trump and Administrator Wheeler for their commitment to farmers and ranchers, and restoring the rule of law. NCBA looks forward to the finalization of a practical Waters of the United States definition that will protect our water resource while allowing cattle producers to do their jobs effectively."


The National Pork Producers Council (NPPC) released a similar message: "We're pleased the EPA is moving toward a commonsense WOTUS rule that works with -- not against -- farmers to protect our nation's waterways," says NPPC president David Herring, a pork producer from Lillington, North Carolina. "The previous WOTUS rule was a dramatic government overreach and an unprecedented expansion of federal authority over private lands. Today's action will remove the threat that the 2015 WOTUS rule posed for our ability to efficiently grow the amount of food needed by people around the globe, while providing regulatory certainty to our farmers and businesses. We look forward to working with this administration to finally implement a new WOTUS rule."

UNCERTAINTY REMOVED


Until the rule was eliminated, various lawsuits and court rulings meant 22 states were operating under the 2015 rule while 28 states were under injunctions or court stays that placed them under the old Clean Water Act rules.


Don Parrish, director of regulatory affairs for the American Farm Bureau Federation, says the 2015 rule wrote the term "navigable" out of the Clean Water Act, leading to significantly broader uncertainty for farmers.


"For farmers, it removes some uncertainty that rule put into place, and it provides some consistency because right now, before they repeal, there's one set of rules being implemented in one set of states and a different set of rules being implemented in other states," Parrish says. "We hope this will bring some consistency back to the process."


Eliminating the 2015 rule emphasizes the need for the Trump administration to finish its new rule, which should be finalized before the end of the year, Parrish says. "That clarity would both protect clean water [and] provide some understanding of where federal jurisdiction stops and where state jurisdiction takes over," he says.


Under EPA's rule proposed last December, there would still be six categories of federal jurisdiction that include traditional navigable waters, tributaries, certain ditches that are navigable or affected by tide, lakes, ponds and wetlands that are connected to waters of the U.S.


The National Wildlife Federation condemned the Trump administration's move, stating it would peel back protections for waterways that provide drinking water to 117 million Americans, as well as protect streams important to fish species.


"No one wants to fish a lake covered in toxic algae, duck hunt in a bulldozed wetland or pitch a tent next to a creek filled with feces," says Collin O'Mara, president and CEO of the National Wildlife Federation. "Unfortunately, this administration is working on multiple fronts to rewrite the rules that protect our waters hoping no one will notice. The collective impact of these changes would be devastating for public health and wildlife across the country -- and we will continue to fight to protect America's waterways every step of the way."

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