Dec 13, 2017
Input pours into EPA for future WOTUS rulemaking

The EPA has started the process to rescind its 2015 rule regarding federal waters, and continues to gather input for whatever comes next.

The 2015 rule, defining what constitutes Waters of the U.S. (WOTUS) under the Clean Water Act, was widely criticized by the agriculture industry as overreach by the EPA and Army Corps of Engineers. Legal challenges to the rule were filed by numerous states and entities affected by the rule, and the U.S. Supreme is hearing a case to decide which court has jurisdiction to decide those legal challenges.

“All indications are that they are going to rescind this rule,” said American Farm Bureau Federation Senior Director for Regulatory Relations Don Parrish. “They’ve got a lot of comments that are very substantive.” But he advises growers affiliated with the statewide bureaus to keep calling their elected officials in Congress, because it’s possible the EPA could just revise the existing rule’s text.

“We thought the rule was kind of irredeemable,” he said. “We thought it was not just statutorily wrong, but constitutionally wrong.”

In June 2017, the EPA and Army started the process to revise or withdraw and revamp the WOTUS rule. EPA Administrator Scott Pruitt said it was the first of two steps needed to redefine WOTUS.

“We are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses,” he said.

The EPA’s announcement came a few months after an executive order by the White House calling for replacement or revision of WOTUS. President Donald Trump described the rule as “one of the worst examples of federal regulation … truly run amok” and keeping farmers and agriculture workers from doing their jobs.

Now, the EPA is gathering input for the revision or replacement of WOTUS. A public comment period ended Sept. 27.

A gully in a field caused by a heavy rain and erosion, has dried out. According to the Tennessee Farm Bureau, the Army Corps of Engineers in 2014 claimed jurisdiction over the gully as a water of the U.S. under the Clean Water Act. Photo: Tennessee Farm Bureau

“As a retired farmer, I realize the importance of water to the operation of just about any farming endeavor,” wrote one commenter, Larry P. Williams. “I am so glad that you recognize the flaws in the current WOTUS rule. It seems very broad and will create extra costs, legal risks and many uncertainties for farmers who depend on the land and use of water to grow their crops.”

The EPA is continuing to conduct listening sessions with specialty groups such as agriculture, municipal leaders, small businessmen and conservation groups.

Michigan Farm Bureau Ag Ecology Department Manager Laura Campbell recently participated in one of the agricultural sessions.

Campbell’s presentation to the EPA included a photo from the Tennessee Farm Bureau that’s supposed to depict a classic example of overreach. The photo shows a gully in a field caused by a heavy rain and erosion, but that since has dried out. According to the Tennessee Farm Bureau, the Army Corps of Engineers in 2014 claimed jurisdiction over the gully as a water of the U.S.

The photo illustrates one of the key arguments of the agriculture industry’s advocates: that the EPA and Army have been reaching for control of much more than just navigable interstate waters.

Growers would like to see the rules more clearly defined, in part because the stakes are high. EPA fees for noncompliance can run tens of thousands of dollars per day. A high-profile legal dispute between federal officials and northern California nursery grower John Duarte ended in a settlement in August 2017. Facing tens of millions in penalties, Duerte agreed to pay $1.1 million in fines and “compulsory mitigation” to restore wetlands on properties other than his own.

“That’s the kind of uncertainty that we just can’t have,” Campbell said.

Public perception remains a struggle for advocates of the agriculture industry. Social media campaigns have painted growers as apathetic about, or even enemies of, water quality, she said.

“We want to protect clean water, but we want clear rules as well,” Parrish said.

Campbell said another common misconception is that all water regulations would go away if the 2015 rule is withdrawn. She added that with the WOTUS rule of 2015 rescinded, rules would temporarily reset to a 1985 rule. The EPA would likely immediately start work on a new rule.

“If this gets withdrawn, people think there’s going to be no regulation of water, and that’s not true,” she said.

Parrish would like to see more state control of WOTUS. Currently, only two of the 50 states – Michigan and New Jersey – have wetlands authority delegated from the EPA, but he’d like to see that model spread to other states.

Input from growers could play a role in the next WOTUS rule. Campbell said so far, thousands of farmers from Michigan alone have submitted their comments to the EPA. “I think we have a real chance to see the results of that in the new rule that’s coming out,” she said.

— Stephen Kloosterman, assistant editor

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