Ag Policy Blog

WOTUS Interim Rule set for Federal Register

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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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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SD Farmer
8/19/2017 | 9:08 PM CDT
This should be a headline;"Activists have hijacked the AG comment section with some more of their "fake news". "
HWylie201500511
7/27/2017 | 10:36 PM CDT
Hello There, Your Clean Water Protections are Under Attack--you must act now or Trumps plan will move forward: https://act.americanrivers.org/page/1597/action/1 As a parent, and as someone who is extremely familiar with the Clean Water Rule, I hope that you will consider supporting it. We all need Clean Water and I guarantee farmers you have been misled about the impacts of the Rule--things Trump's administration are saying are simply false. I will cover the statements being made below as well as the truth about what the Rule really states. 1.Trump said the rule is hurting farmers and ranchers. “It’s prohibiting them from being allowed to do what they’re supposed to be doing. It’s been a disaster.” It seeks to regulate “nearly every puddle... If you want to build a new home, for example, you have to worry about getting hit with a huge fine if you fill in as much as a puddle, just a puddle on your lot… [the Rule treats] small farmers and small businesses as if they were a major industrial polluter.” Truth: The rule has not been implemented because it’s under judicial review. The Clean Water Rule clearly states that it does not regulate: Puddles, Most Ditches; Farm Ponds, Erosional Features; and or Water in Tile Drains Rule text §230.3(s)(2). The Clean Water Rule Does Not Change Policy on Irrigation and Does Not Change Exemptions For Agriculture. In fact the Rule gave new first-time-ever codified exemptions in response to farmer stakeholders requests! Trump must be hoping farmers are too busy working hard to have time to read the Rule for themselves. 2. Trump cited a case in which the EPA fined a Wyoming rancher “for digging a small watering hole for his cattle.” Truth: Before the Rule, that rancher was found to have violated the Clean Water Act, by filling 40 feet of a stream to create a dam, this flooded a stretch of creek the length of 2.5 football fields. Congress has specifically demanded that such activity requires a permit, to protect the public from individuals damming streams for personal use and causing untold consequences for other users. In 2016 the landowner agreed to take action to mitigate the dam’s impacts. 3. Trump said the rule represents “a massive power grab.” Truth: The Rule protects less not more waters then historically protected—because it had to take into account the Supreme Courts rulings. The Rulemaking didn’t and can’t expand beyond --or even restore-- the historic extent and intent of the 1971 congress in passing the Clean Water Act--only congress can restore it. Historically wetlands and small seasonal streams were protected by the Clean Water Act, as Congress had intended: “Water moves in hydrological cycles and it is essential that discharge of pollutants be controlled at the source.” S. Rep. No. 92-414 (1971). 4. Alarmingly, to give the false illusion that the costs (to his recklessly self-motivated business buddies) outweigh the benefits of retaining Clean Water protections, they just removed 88-90% of the benefits from the original Economic Analysis! As parents, we all know the benefits of maintaining safe drinking water and avoiding developmental problems in our kids are higher than just about any conceivable cost. It’s horrific to eliminate the benefits of regulation with the intent of giving the illusion they are outweighed by the costs (forgone profits of polluters). The American Academy of Pediatrics stated “[we are] deeply alarmed that the EPA’s decision to allow the continued use of chlorpyrifos contradicts the agency’s own science and puts developing fetuses, infants, children, and pregnant women at risk.” If Trumps Clean Water Rollback plan moves forward, 1 in 3 American's drinking water sources will loose protections--please don't let that happen. The Rule is good for farmers and critical for drink water source protections. Your choices do make a difference, so please choose to stand by America's most sacred public trust resource--our children's drinking water! Heather Wylie USACE Whistleblower, mother and defender of your water
MCharlos299953048
7/26/2017 | 12:10 PM CDT
Revoking WOTUS would allow potential environmental deterioration of California's coast, enabling industrial contamination of Monterey Bay, Greater Farallons, Cordell Bank and Channel Islands. To maintain the viability of our Pacific shore, retain WOTUS, Respectfully, Michael Charlos Novato, CA