WOTUS Repeal Moves

Interim Rule Sets Law to Pre-2015

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The U.S. Environmental Protection Agency moved Tuesday to repeal the WOTUS rule. (DTN graphic)

OMAHA (DTN) -- The federal government is turning back the clock on the controversial waters of the United States, or WOTUS, rule -- quite literally -- with a proposal announced on Tuesday to recodify the law as it was written prior to 2015.

The U.S. Environmental Protection Agency said in a news release that the move will allow for a second rulemaking down the road.

"This action would, when finalized, provide certainty in the interim, pending a second rulemaking in which the agencies will engage in a substantive re-evaluation of the definition of 'waters of the United States,'" the EPA said.

"The proposed rule would be implemented in accordance with Supreme Court decisions, agency guidance and longstanding practice."

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.

"We are taking significant action to return power to the states and provide regulatory certainty to our nation's farmers and businesses," EPA Administrator Scott Pruitt said in a statement.

"This is the first step in the two-step process to redefine 'waters of the U.S.' and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public."

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.

"Therefore, this action, when final, will not change current practice with respect to how the definition applies," the EPA said in a news release.

The EPA and the U.S. Army 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.


As expected, agriculture interests and Midwestern lawmakers were pleased with the administration's announcement.

Zippy Duvall, president of the American Farm Bureau Federation, said in a statement to DTN that the previous rule had little to do with water quality.

"It was a federal land grab designed to put a straightjacket on farming and private businesses across this nation," he said.

"That's why our federal courts blocked it from going into effect for the past two years. Today's announcement shows EPA Administrator Pruitt recognizes the WOTUS rule for what it is -- an illegal and dangerous mistake that needs to be corrected."

Sen. Joni Ernst, R-Iowa, and a member of the Senate Environment and Public Works Committee, said the repeal of WOTUS is particularly critical for Iowa.

"In Iowa, 97% of the land is subject to extensive over-regulation by the EPA and unnecessarily hamstrings our famers, businesses and manufacturers," she said in a statement to DTN.

"This is good news for Iowa and rural communities across the country as we move closer to finally eliminating this overreaching rule."

House Agriculture Committee Chairman Rep. K. Michael Conaway, R-Texas, said all federal agencies should re-evaluate their enforcement of the WOTUS rule.

"WOTUS has never been about clean water, it was about feeding the Obama EPA's insatiable appetite for power," he said in a statement. "Well that ends now. Today's EPA announcement is an important first step to getting the federal government out of America's backyards, fields and ditches and restoring certainty and integrity to our regulatory process."

Iowa Gov. Kim Reynolds said the WOTUS rule was a "significant and severe case of government overreach" by the Obama administration.

National Cattlemen's Beef Association President Craig Uden said the EPA's action is "another great step in the right direction, and the administration deserves a great deal of credit for injecting some much-needed common sense into our nation's environmental policies.

"It's important to remember, though, that this rule isn't dead yet. The rulemaking process continues, and NCBA will submit and solicit additional comments on behalf of America's cattle producers so that they finally get the sanity and clarity they need on land use policy."

U.S. House Science, Space, and Technology Committee Chairman Rep. Lamar Smith, R-Texas, said he was pleased to see EPA step back and re-evaluate the rule.

"Today's decision by EPA, and the Army Corps of Engineers, to go back to the basics and build a better policy with input from local stakeholders puts the power back in the hands of the people," he said in a statement.

"The Obama administration imposed heavy-handed federal regulations on virtually every private and public lake, pond and stream across the country."


Jo Ellen Darcy, former assistant secretary of the U.S. Army Corps of Engineers, and now a board member of the environmental group American Rivers, said in a statement the EPA action brings uncertainty.

"Today's move to rescind the Clean Water Rule creates more risk for river health and more uncertainty for federal agencies, landowners and communities," she said.

"By tossing out years of scientific study and public input, Scott Pruitt and the Trump administration, are muddying the very waters the Clean Water Rule sought to clarify."

Whit Fosburgh, president and chief executive officer of the Theodore Roosevelt Conservation Partnership said a new rule should be based in science.

"If the president intends to fulfill his stated goal of having the cleanest water, he should direct his administration to identify paths forward for defending and implementing the Clean Water Rule based on sound science, regulatory certainty, and the national economic benefits of clean water," he said.

"Instead, today's action to rescind the rule puts at risk the fish and wildlife that rely on more than 20 million acres of wetlands and 60% of the country's streams, while the process for ensuring the protection of these clean water resources remains unclear."

Collin O'Mara, president and CEO of the National Wildlife Federation, said he's concerned the EPA action will hurt water quality.

"The repeal and replacement plan could end up rolling back Clean Water Act protections for a majority of the nation's streams and wetlands," he said, "including the headwater streams that are so important for trout and other species of fish, plus millions of acres of seasonal wetlands that store flood waters and provide essential habitat for more than half of North American migratory waterfowl and a diverse array of other birds, amphibians and reptiles."

Sportsmen, conservation groups and others are concerned the repeal could affect the outdoor recreation businesses.

"Clean water is a basic right of every American," said Chris Wood, president and chief executive officer of Trout Unlimited.

"To be effective, the Clean Water Act must be able to control pollution at its source. Unfortunately, today's action by the EPA places the health of 60% of the stream miles and the drinking water of one in three Americans at risk."

Read the proposed rule here: http://bit.ly/…

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

Follow him on Twitter @toddneeleyDTN


Todd Neeley

Todd Neeley
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