Ag Policy Blog

A proposed turn back of the clock to 2015 on the waters of the United States, or WOTUS, rule is slated to post in the Federal Register on Thursday, according to a pre-publication copy of the proposal obtained by DTN.

Back in June the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers announced the proposal to replace the WOTUS rule in the interim with a return to the previous rule.

The publication will open a 30-day public comment period, slated to end on Aug. 26.

In the proposal set for publication, the agencies said they've considered other options ahead of a complete rewrite.

"The agencies considered other approaches to providing stability while they work to finalize the revised definition, such as simply withdrawing or staying the Clean Water Rule, but did not identify any options that would do so more effectively and efficiently than this proposed rule would do," the agencies said.

"A stable regulatory foundation for the status quo would facilitate the agencies’ considered re-evaluation, as appropriate, of the definition of 'waters of the United States' that best effectuates the language, structure, and purposes of the Clean Water Act."

The proposed interim rule came about as a result of President Donald Trump's Feb. 28, 2017, executive order calling for a review of the WOTUS rule that is the subject of many lawsuits. The U.S. Supreme Court is slated to consider a legal challenge regarding which court is the proper venue to consider those cases.

Agriculture, other industry groups and state governments across the country alleged the Obama administration's WOTUS rule expanded federal jurisdiction to waters not traditionally protected by the Clean Water Act. Even prior to the completion of the 2015 WOTUS rule, farmers and ranchers faced uncertainty as to which waters were considered jurisdictional. So far neither Congress, nor the EPA, has been able to make the law more understandable.

In a letter sent to governors in all 50 states and U.S. territories back in May, the EPA and the Corps of Engineers asked for input from governors on a new definition or protected waters that is in line with U.S. Supreme Court Justice Antonin Scalia's opinion in the 2006 Rapanos v. United States case.

In that case, Scalia wrote that federal oversight should extend to "relatively permanent" waters and wetlands with a "continuous surface connection" to large rivers and streams.

"EPA is restoring states' important role in the regulation of water," Pruitt said in a May statement. "Like President Trump, I believe that we need to work with our state governments to understand what they think is the best way to protect their waters, and what actions they are already taking to do so. We want to return to a regulatory partnership, rather than regulate by executive fiat."

The EPA and the Corps of Engineers have launched a process that includes "deliberations and outreach" as part of revisiting the rule. The EPA, for example, has asked for input from governors across the country.

Read the proposal here: http://bit.ly/…

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

Follow him on Twitter @toddneeleyDTN

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