Water Rule Extension Pending

Public Comments on Proposed Change to Clean Water Rule Top 11,000

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
Connect with Todd:
The public comment period on a proposed change to the waters of the United States rule is Aug. 28. (Photo by Chris Clayton)

OMAHA (DTN) -- The U.S. Environmental Protection Agency has yet to decide whether to grant a request by a number of Democratic senators to extend by 90 days the public comment period on a proposed rollback of the waters of the United States, or WOTUS, rule, an agency spokesperson told DTN on Friday.

In a July 17, 2017, letter to EPA Administrator Scott Pruitt and Douglas Lamont, deputy assistant secretary of the U.S. Army Corps of Engineers, a group of 22 senators asked the agencies to extend the comment period.

"The 30-day comment period EPA proposes...is far too short to allow full review, careful analysis and heartfelt feedback from as many of the millions of Americans potentially impacted by this endeavor wish to share their views, including the 117 million (or one in three Americans) who receive drinking water from the waterbodies affected by this proposal," the letter said.

As of Friday, EPA had received more than 11,000 public comments ahead of the Aug. 28 deadline on a proposal to reset the clean water rule back to pre-2015 language -- prior to the final WOTUS rule. Of those comments, just 330 have been posted to regulations.gov. Most of those are anonymous and so far just one agriculture group's comments have been posted.

The agency announced it would attempt to better define "navigable waters" in what is expected to be a two-part effort. The current proposal would revert the rule back to pre-2015, before the EPA finalized the WOTUS rule.

The second part of the agency's plan includes then re-writing the rule. As part of that effort, the agency already has reached out to governors in all 50 states to seek input.

Interestingly, the senators asked the agency to extend the comment period by 90 days as it did for the 2015 WOTUS rule, although the current proposal essentially changes nothing in terms of how the Clean Water Act currently is enforced. The WOTUS rule is on a stay nationally, pending lawsuits. This means enforcement of the CWA already has reverted back to the pre-2015 regulation.

That letter was signed by Democratic Senators Tom Carper, Del.; Edward J. Markey, Mass.; Cory Booker, N.J.; Christopher Van Hollen, Md.; Richard Durbin, Ill.; Margaret Wood Hassan, N.H.; Robert P. Casey, Jr., Pa.; Ben Cardin, Md.; Sheldon Whitehouse, R.I.; Tom Udall, N.M.; Jeffrey Merkley, Oregon; Jeanne Shaheen, N.H.; Tammy Baldwin, Wis.; Elizabeth Warren, Mass.; Patty Murray, Wash.; Gary Peters, Mich.; Kamala Harris, Calif.; Tammy Duckworth, Ill.; Jack Reed, R.I.; Maria Cantwell, Wash.; Robert Menendez, N.J.; and Dianne Feinstein, Calif.


As part of the official record, EPA posted an economic analysis of the proposed move back to the pre-2015 regulation.

"This rule does not establish any regulatory requirements or directly mandate actions on its own," the analysis said.

"However, by changing the definition of 'waters of the United States,' the proposed rule changes the waters where other regulatory requirements that affect regulated entities come into play, for example, the locations where regulated entities would be required to obtain certain types of permits. The consequence of a water being deemed non-jurisdictional is simply that CWA provisions no longer apply to that water."

The agency said it estimates reverting back to the 2015 water rule would result in a "small overall increase in positive jurisdictional determinations compared to those made under the 1986 regulation as currently implemented."

The analysis said the annual "avoided costs" of the proposed rule would range from $162 million to $476 million. EPA estimates there will be millions of dollars in lost benefits from not implementing the 2015 rule -- ranging from $34 million to $73 million. EPA estimates the proposed rule could have a total cost-savings of anywhere from $1.8 billion to $5.2 billion.

"With the proposed rule, the agencies expect to avoid some impacts on landowners and land users," the analysis said.

A number of agriculture interest groups were part of a larger legal effort to fight the WOTUS rule after it was finalized in 2015.

In comments to EPA and the Corps of Engineers on July 27, the Oregon Cattlemen's Association expressed support for rescinding the 2015 rule.

"The agencies should rescind the 2015 clean water rule because the 2015 rule's provisions are, in various respects, beyond the agencies' statutory authority, inconsistent with Supreme Court precedent, and contrary to the goals of the Clean Water Act," the group said.

"The agencies' failure to seek input from state and local entities during the development of the 2015 rule contributed to the rule's legal flaws and lack of clarity.

The Oregon Cattlemen's Association added that their concerns focused on "the regulatory uncertainty that flows from the 2015 rule's lack of clarity on key terms and definitions, such as 'adjacent,' 'floodplain,' 'ordinary high-water mark,' and 'significant nexus.' Moreover, by allowing for jurisdiction over remote, isolated features and ephemeral washes, as well as 100-year floodplains, the 2015 rule improperly reads the word 'navigable' out of the statute, and implicates significant constitutional concerns about the appropriate scope of federal authority."

The agency also has received comments from a number of supporters of the 2015 rule.

The Montana Wildlife Federation said in comments that its members support the 2015 rule because it provides more protection for fish and wildlife. The wildlife group noted EPA had met with more than 400 stakeholder groups, including organizations that represent farmers and ranchers. Further, nearly one million people sent comments to EPA backing the rule change.

"The current clean water rule is backed by science, extensive public input, and the law," the group said.

The wildlife federation added, "In contrast, the rushed plan to replace the clean water rule will not provide adequate opportunity for the many stakeholders and affected communities. It contradicts the law and science and ignores the robust public record in support of the 2015 clean water rule."

The MWF said the proposed rulemaking could lead to the loss of protections for nearly "60% of streams in the lower 48 states that do not flow year-round and could threaten protections for most of the 110 million acres of wetlands in the continental United States."

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

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

Follow him on Twitter @toddneeleyDTN


Todd Neeley