Aggies, Enviros Divided on WOTUS Rule

LINCOLN, Neb. (DTN) -- If the Trump administration was hoping to find common ground between agriculture, industry and environmentalists on a revised waters of the U.S. definition, Thursday's listening sessions may have left doubt.

Agriculture representatives said they want clearer definitions of some key terms used in the Clean Water Act, so as to create certainty and make the regulations easier to follow, during a hearing hosted by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers.

"For decades we've been living under a guilty-until-proven- innocent regime because previous administrations have interpreted the Clean Water Act too broadly, leaving the threat of violations with penalties of up to $50,000 per day hanging over our heads," Garrett Hawkins, president of the Missouri Farm Bureau, told the agencies.

Environmentalists asked for no changes to the WOTUS rule, arguing a Biden administration amended rule finalized after the Supreme Court's ruling in Sackett v. EPA answered all the questions.

The Biden EPA finalized a rule that removed all references to the so-called significant nexus test the court unanimously ruled was invalid.

"The 2023 conforming rule adequately incorporated this ruling into the definition of waters of the United States," said Jim Murphy, director of legal advocacy for the National Wildlife Federation.

"As such, we urge the EPA and the Corps to keep the conforming rule in place. The certainty most Americans want is that when they turn on their water, when they take a swim in their local lake on a warm summer day, or when they take their child and grandchild to fish in a nearby stream that they can trust that the water there will be safe."

AG WISH LIST

Agriculture groups asked the agencies for several things in a new WOTUS rule, including that it aligns with the Sackett ruling as well as the plurality opinion in Rapanos v U.S.

In the Rapanos case, the court plurality held that Clean Water Act protections extend only to "relatively permanent, standing, or continuously flowing" bodies of water. The court also said that excluded intermittent or ephemeral waters.

In Rapanos, the court also created a "continuous connection" test for adjacent wetlands to be considered jurisdictional.

Ag groups called on the agencies to categorically exclude ephemeral and most intermittent waters. In following the Sackett ruling, ag representatives asked that wetlands only be considered as jurisdictional if they directly abut and are indistinguishable from a WOTUS.

Kim Brackett, vice president of the National Cattlemen's Beef Association and a rancher who farms with her husband in southern Idaho, told the agencies farmers and ranchers need clarity.

"A practical WOTUS definition will allow the average landowner -- not an engineer, not an attorney, not a wetland specialist -- to walk out on their property, see a water feature and make at minimum a preliminary determination about whether a feature is federally jurisdictional," she said.

Courtney Briggs, senior director of government affairs for the American Farm Bureau Federation, said the inclusion of ephemeral and intermittent streams as jurisdictional has had a broad effect on farms and ranches.

However, she said even the Supreme Court rulings in Rapanos and Sackett still did not define important terms.

"We need some context as to what relatively permanent means and I understand that this is a difficult exercise," Briggs said.

The now-late Justice Antonin Scalia referenced in Rapanos an example of a 290-day flowing stream to illustrate a scenario where a stream may dry up for short periods of time.

"However, he indicated that this 290-day flowing stream isn't necessarily relatively permanent," Briggs said.

"I highlight this because it's rather incredible that this example served as the basis for the post-Rapanos guidance but it was decided that streams flowing for 90 days or even less could be regulated as a relatively permanent water. I honestly don't know how to make sense of this."

Briggs said she believes the court "did not intend" for a 90-day flowing stream to be jurisdictional.

EXPANSIVE INTERPRETATION CONCERNS

Jay Bragg, associate director of commodity and regulatory affairs for the Texas Farm Bureau, said the "expansive interpretation" of waters of the U.S. has been "extremely concerning" especially for producers involved with conservation work.

"That they move protections that are intended for lakes and rivers and streams into cropland fields and manage flood control structures, grass waterways and other drainage features on farm, and the cost associated with the non-compliance of Clean Water Act are just simply too high for farmers," Bragg told the agencies.

"They should be able to make these determinations without consultants or engineers, and you know much greater certainty is needed and clarity as far as what a water is and what water is not."

Bragg said there should be exclusions for ephemeral and intermittent waters and a specific definition for "relatively permanent" features.

Laura Campbell, conservation and regulatory specialist with the Michigan Farm Bureau, told the agencies the definition of "relatively permanent" put forward in the Rapanos decision should be used.

"A water that might dry up under the extraordinary circumstances like a drought but which otherwise does not flow just intermittently or ephemerally, and which does not solely carry rainfall drainage," she said, "this definition should apply to any federally regulated water, whether a natural stream or lake or a constructed ditch."

Campbell said the "continuous surface connection" for wetlands should make it so wetlands are indistinguishable from a water of the U.S. to be jurisdictional -- a key point in the Supreme Court's Sackett decision.

"It can't be connected but solely by groundwater or ephemeral streams, ditches or man-made conveyances," she said.

"It must have that surface connection and the connection must be so strong that it cannot be separated from its attached navigable water of the U.S."

ENVIRONMENTAL GROUPS TESTIMONY

Environmental interests testifying on Thursday afternoon not only argued against modifying the 2023 Biden amended rule issued in response to the Sackett ruling but called for broader water protections.

They said there was an interconnectedness of water systems even when physical connections aren't continuously visible.

Environmental groups highlighted the ecological functions of wetlands and non-perennial streams' roles in flood protection, water filtration, wildlife habitat and the economic benefits of those waters.

Matthew McKinzie, senior director of data and policy analysis at the Natural Resources Defense Council, said even if the current WOTUS rule was left in place there is expected to be wetland losses.

"In our mid-range scenario, which parallels the interpretations of Sackett that many industry groups in some states have suggested, it would be approximately 38 million acres of wetlands lost to pollution or destruction without federal safeguards representing 78% of individual wetlands," McKinzie told the agencies.

Stacy Woods, research director for the food and environment program at the Union of Concerned Scientists, said the Trump administration's proposal would put increasing pressure on wetlands.

"They are at risk of being damaged or destroyed by industries seeking to maximize their profits, regardless of the environmental cost," Woods said during testimony.

"Even before the Sackett decision, wetlands were losing ground in the United States. Between 2009 and 2019, 650,000 acres of wetlands were lost in the U.S. -- that's larger than the land size of Rhode Island."

Woods said the Union of Concerned Scientists found in the upper Midwest alone, that 30 million acres of existing wetlands offer nearly $23 billion in residential flood protections each year.

"But wetlands do more than soak up water and reduce flooding in nearby communities," she said.

"Wetlands also provide substantial benefits to commercial fishing, water supply, water quality, carbon capture and recreation, amounting to over $7 trillion per year, according to fish and wildlife. Research shows us that even wetlands that look isolated on a map are often still connected to other waters, narrowing the definition of protected waters."

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

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