WOTUS Rulemaking Battlefronts Heat Up

LINCOLN, Neb. (DTN) -- Although state and agriculture interests are calling for EPA and the U.S. Army Corps of Engineers to withdraw a first rule resetting waters of the U.S. definitions back to pre-2015, the agencies already have effectively returned to those definitions.

Ag groups submitting comments to EPA on Monday point to a lack of engagement from the agencies as reason for concern.

Battle lines are being drawn on a renewed war on how to define waters of the U.S. in the Clean Water Act (CWA), seven years after the Obama administration finalized a rule that eventually lost in court and was then rewritten by the Trump administration.

The Biden administration's EPA currently is enforcing pre-2015 definitions while doing a broader rewrite, although the agencies just recently completed a public-comment period on a first pre-2015 rule.

Though two federal courts have tossed the Trump administration's Navigable Waters Protection Rule and the Biden administration is in the process of doing yet another rewrite, the state of Florida has continued to instead enforce the Trump rule as part of its CWA permitting program.

At the end of last week all 50 Republican U.S. senators asked EPA Administrator Michael Regan to stop work on the broader rewrite pending the outcome of a Supreme Court case that could determine just how broad or narrow EPA's powers are in the Clean Water Act.

This week groups representing both agriculture and environmental interests submitted comments regarding current work on WOTUS.

The National Association of State Departments of Agriculture (NASDA) said in comments that state officials have been left out of the rulemaking process.

Similar concerns were levied at EPA leading up to the drafting of the final 2015 WOTUS rule.

NASDA said the federal agencies continue to discount the role state regulators play in protecting water resources.

"The CWA establishes limits on federal jurisdiction and the role of the federal government to regulate interstate commerce, thus recognizing the role of states in regulating non-navigable waters," NASDA said in a letter to EPA.

The group of state agricultural directors also defended the Trump-era rule. "The Navigable Waters Protection Rule respected these limitations on federal jurisdiction, as well as the capabilities and responsibilities of states to regulate and promote water quality."

The EPA and Corps put out a list of what they say are more than 300 projects causing environmental harm "based solely on the premise that these projects are not subject to federal jurisdiction," NASDA said in the letter, "and seemingly ignoring the role and responsibilities of state's review and approval of projects that may impact non-jurisdictional waters."

NASDA said they have highlighted the benefits of such projects in briefings and public meetings with EPA. Yet, "EPA officials seemed surprised that these projects might be beneficial. Rather than conducting the necessary analysis internally, the agencies continued to assert these misleading arguments in public releases.

"Unfortunately, any review undertaken by EPA and the Corps lacked either transparency or input from stakeholders, including state partners. State departments of agriculture could have shared from the start that the local environmental regulatory programs implemented and enforced by states are effective and beneficial."

SIGNFICANT NEXUS

The return to the so-called "significant nexus" standard that was a hallmark of the 2015 rule -- the idea that dry land could be considered jurisdictional if there's evidence of previous water flow to larger water bodies -- is something NASDA said was difficult for farmers and ranchers.

"EPA and the Corps are now moving forward with efforts to resurrect a regulatory structure that was historically problematic for American agriculture," NASDA said.

"NASDA members, farmers, ranchers, and the agriculture industry have repeatedly advocated for clarity and reasonableness in the regulatory definition of WOTUS. They have argued that compliance with clean water standards should not require the employment of expensive consultants to determine the applicability of standards.

"Unfortunately, the proposed rule will return us to the ambiguity of past regulation as well as the federal overreach that ignored the role and expertise of state partners."

The NASDA said the rulemaking process should be stopped until the Supreme Court later this year considers Sackett v. EPA, which could ultimately determine the reach of the Clean Water Act.

LACK OF ENGAGEMENT

In what was a common theme from comments submitted on the rule, the American Farm Bureau Federation joined other ag groups in calling for the withdrawal of the pending rule because of what they say has been a lack of engagement with farmers and ranchers.

"Put plain, we are disappointed by the proposed rule," AFBF said in comments.

"The Navigable Waters Protection Rule was a clear, defensible rule that appropriately balanced the objective, goals, and policies of the Clean Water Act, and the agricultural groups feel strongly that the agencies should have kept it in place, rather than refuse to defend it and revert to definitions of WOTUS that: test the limits of federal authority under the Commerce Clause; cast significant uncertainty upon property owners' understanding of the jurisdictional status of their land; and, ultimately, are not necessary to protect the nation's water resources."

AFBF goes on to say it was "disappointed by the lack of meaningful outreach" by EPA prior to issuing the proposed rule to return to pre-2015 definitions.

"We believed that the agencies would conduct these proceedings in good faith and with full consideration of all stakeholder views, but we are now concerned that the agencies do not intend to provide the open and dialogue-driven process promised," AFBF said.

The National Cattlemen's Beef Association asked EPA to support a "limited, clear definition of WOTUS that maintains agricultural exclusions and respects existing Supreme Court precedent limiting federal jurisdiction over small bodies of water."

In comments to EPA, NCBA Chief Environmental Counsel Scott Yager said the Biden administration's rule "repeals bipartisan exclusions" carved out for agriculture.

"Without these critical exclusions, common features like stock ponds, agricultural ditches, and drainage systems can fall under federal jurisdiction, preventing cattle producers from actively managing their land and caring for their cattle," NCBA said.

Also on Monday, 120 House Democrats called on EPA to finalize a new WOTUS definition to replace what they said was the "Trump Dirty Water Rule."

A group of 27 water quality groups led by the Chesapeake Bay Foundation filed comments supporting the Biden administration's proposal.

The groups called for the next rule to protect non-adjacent wetlands and seasonal streams, including two types of wetlands unique to the Bay region -- shallow depressions known as Delmarva bays and swampy bogs called pocosins.

FLORIDA FIGHT

The EPA and Corps already have returned to enforcing pre-2015 WOTUS definitions on questions of jurisdiction, as evident in the agencies' approach with the state of Florida.

The Florida Department of Environmental Protection has been embroiled in a battle with EPA regarding the state's federally approved CWA Section 404 permitting program.

That program was approved by the Trump administration and applies Navigable Waters Protection Rule definitions. The state continues to use NWPR definitions in its program.

The state is fighting a lawsuit in the U.S. District Court for the District of Columbia, where environmental groups contend the EPA did not complete an Endangered Species Act review prior to approving Florida's program, among other accusations. In addition, EPA officials have been pressing the state to use pre-2015 definitions instead.

In a letter to the Florida Department of Environmental Protection on Dec. 9, 2021, EPA Region 4 Administrator Daniel Blackman said the FDEP is required to use the pre-2015 definitions.

"When EPA approved Florida's request to assume the Section 404 program, the term 'waters of the United States' was defined by the 2020 Navigable Waters Protection Rule," the letter said.

"On Aug. 30, 2021, the U.S. District Court for the District of Arizona vacated and remanded the NWPR. On Sept. 27, 2021, the U.S. District Court for the District of New Mexico also issued an order vacating and remanding the NWPR.

"Pursuant to these cases, the agencies interpret 'waters of the United States' under the statute and implementing regulations to mean the pre-2015 regulatory regime."

In September 2021, Earthjustice attorney Tania Galloni told the FDEP in a letter that returning to pre-2015 definitions would restore "broader coverage of waterways under the Clean Water Act" as existed in previous years.

The letter said the state was required to take immediate actions to adjust its program to meet pre-2015 WOTUS definitions.

Alexandra Kuchta, press secretary at the Florida Department of Environmental Protection, told DTN the department continues to have discussions with federal partners to determine how the court rulings striking down the Trump rule affects the state.

"Federal assumption regulations (40 C.F.R. 233.16) include a provision that should there be any change to the program or any applicable federal law, states have up to one year to make any necessary rule change(s) or two years to make any necessary statutory change(s)," she said in a statement.

"The U.S. EPA is engaged in rulemaking to draft a new water of the United States rule, and DEP continues to monitor the progress of that rulemaking."

Read more on DTN:

"EPA Proposes Pre-2015 WOTUS Definition," https://www.dtnpf.com/…

"50 Senators: EPA, Stop WOTUS Rulemaking," https://www.dtnpf.com/…

"EPA Defends Significant Nexus at SCOTUS," https://www.dtnpf.com/…

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

Follow him on Twitter @DTNeeley

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