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New Waters of the U.S. Rule From EPA

Last month, on the same day that the Senate passed the Farm Bill Conference Report, and a day before the House took similar action, the Trump Administration released a new proposed waters of the United States, or WOTUS, rule.  Today’s update highlights news items that focused on the new proposal.

DTN writer Todd Neeley reported last month that, “EPA on [December 11th] released a newly proposed waters of the United States, or WOTUS, rule that would erase many of the concerns farmers and ranchers had about the 2015 rule.

Under the proposal, there would be just six categories of jurisdictional waters. That includes traditional navigable waters, tributaries, certain ditches that are navigable or affected by tide, lakes and ponds, impoundments, and wetlands that abut or are connected to waters of the United States.

The proposal lists waters that would not be regulated. That includes certain land features where water is present only as a result of heavy rainfalls, groundwater, most ditches, prior-converted croplands, storm water and wastewater features.”

“Proposed Revised Definition of ‘Waters of the United States.'” Graphic from a December 12th EPA Twitter Post (https://twitter.com/EPA/status/1072951726838177792)

Mr. Neeley noted that, “David Ross, EPA’s assistant administrator for water, said during a press briefing the EPA was looking for ‘simplicity, clarity and regulatory certainty‘ in developing the new rule ‘recognizing the federal government has limited powers.'”

The DTN article explained that, “On navigable waters, [Mr. Ross] said the EPA is not changing what was historically regulated

“When it comes to tributaries, in particular, Ross said the EPA attempts to provide a ‘straight-forward’ definition.

“When looking at tributary flows, the new rule uses the term ‘typical year‘ to determine if it is a WOTUS. Currently, that term is used in the field by EPA and U.S. Army Corps of Engineers in making Clean Water Act determinations.”

The DTN article added, “Currently, the 2015 rule is in effect in 22 states and on hold in 28 states. [EPA Acting Administrator Andrew Wheeler] said the ‘patchwork’ of regulation creates uncertainty for landowners.

“‘Our new rule will create certainty,’ he said.”

Joseph Morton reported on the front page of the Omaha World-Herald on December 12th that, “Osceola farmer Kevin Peterson knows something about the cost of complying with water regulations.

“Peterson grows corn and soybeans in addition to running a hog operation. He said he spent tens of thousands of dollars on engineering fees to ensure that his hog operation meets all state and federal requirements.”

“Farmers welcome Trump’s move to roll back water rules,” by Joseph Morton. Front Page Omaha World-Herald (December 12, 2018).

That’s why he and many other farmers breathed easier this week after the Trump administration moved to officially roll back protections for waterways and wetlands across the country. It’s a push that makes good on President Donald Trump’s campaign pledge to loosen landmark Obama-era water rules long opposed by some developers, farmers and oil, gas and mining executives.”

The World-Herald article noted that, “Under President Barack Obama, EPA officials said the 2015 rules would be easier and clearer than those written previously. They rejected suggestions that they were going to regulate every muddy hoofprint out there.

“Still, for farmers such as Peterson, that approach opened up way too much land to the regulation under the Clean Water Act.

Farmers worried they would suddenly be under federal scrutiny for ditches near their fields that had running water only during the heaviest of downpours.

Evan Halper reported in the December 12 edition of the Los Angeles Times that, “The proposal, which now moves into a 60-day public comment period, is certain to draw legal challenges from environmental groups and many states.

The fight marks the latest chapter in a decades-long struggle over the reach of the Clean Water Act. Agriculture businesses, developers and oil and mining companies say the existing rule has enabled heavy-handed bureaucrats to impose hefty fines on them for disrupting ditches and filling wetlands never meant to be regulated by the federal government.”

“Rollback of clean water rules unveiled,” by Evan Halper. Los Angeles Times (December 12, 2018).

In an opinion column published last month in the Kansas City Star, Acting EPA Administrator Andrew Wheeler stated that, “Shortly after he took office, Trump issued an executive order directing EPA and the Army to review and replace, as appropriate, the 2015 definition with one that restores the rule of law and the role of states and landowners in managing their land and water resources. He also explicitly charged us to consider doing so in a manner consistent with Justice Antonin Scalia’s opinion in the landmark Rapanos case.

Our proposed new definition would do just that. It would end years of uncertainty over where federal jurisdiction begins and ends. For the first time, we are clearly delineating the difference between federally protected wetlands and state protected wetlands. Our proposal would be clearer and easier to understand, and, inspired by Scalia, it adheres to the statutory limits of our authority. It would help a landowner understand whether a project on his or her property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals or wasting precious time.”

However, Washington Post writer Steven Mufson reported last month that, “The administration’s new proposal is likely to be in conflict with the Rapanos decision. Legal experts said the administration might be betting that the newly constituted court will look favorably on the new rule. But it could take two to three years of litigation before a case reaches the high court, and by then there could be a different presidential administration.”

Also last month, New York Times writer Coral Davenport reported that, “[Don Parrish, director of regulatory relations with the American Farm Bureau Federation] also said the Obama rule chafed its detractors because of the perception it was written by bureaucrats who did not understand the daily reality of farmers’ livelihoods. ‘The last administration called our concerns silly and ludicrous, and this administration took us seriously. They listened to us,’ he said.

“In particular, he cited a social media campaign run by the Obama administration, ‘Ditch the myth,’ which challenged the claim that the rule would have regulated water in ditches. ‘With that campaign, they were laughing at us,‘ he said.”

The Times article pointed out that, “Mr. Trump won cheers from rural audiences on the presidential campaign trail when he vowed to roll back the Obama rule.”

Meanwhile, The Washington Post editorial board indicated last month that, “The new definition would give farmers license to dump fertilizers onto their land with far less care if the pollution makes its way downstream, or coal-mining interests that eviscerate mountaintops and drive the rubble into nearby valleys.”

The Post added that, “The EPA insists that it is simply following the law as written. Yet there is a good case that the agency’s narrow view of its authority may, in fact, be illegal. The Supreme Court has offered mixed guidance, but the closest the court has come to a bottom line is this: The federal government has authority over large, navigable bodies of water and those with a ‘significant nexus‘ to them. That gives the EPA broad authority to recognize that, say, water flows below ground as well as above it.

Keith Good

Keith Good is the social media manager for the farmdoc project at the University of Illinois. He has previously worked for the USDA’s National Agricultural Statistics Service, and compiled the daily FarmPolicy.com News Summary from 2003-2015. He is a graduate of Purdue University (M.S.- Agricultural Economics), and Southern Illinois University School of Law.

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