It’s no secret that the Waters of the U.S. rule, or WOTUS, has been enormously unpopular among the vast majority of landowners, farmers and many others since it was rolled out by the Obama administration in 2015.
It’s been at the center of multi-jurisdictional litigation, with its implementation stayed in several states, and it’s been on pace to be reviewed by the U.S. Supreme Court.
That’s why many people rejoiced last month after the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers announced that they have begun the process of replacing the much-maligned rule.
You may recall that one of President Donald Trump’s first acts in office almost 2 years ago was to sign an executive order directing agencies to rescind and replace the WOTUS rule, considered by many to be vague and an overstep of the Clean Water Act’s original intent.
Changes include revising the definition of a waterway of the U.S. (this alone took more than 250 pages to accomplish) and setting the scope of federal authorities to regulate waterways and wetlands under the CWA.
WOTUS was flawed from its inception and widely criticized by agriculture organizations and state governments who argued that it was overly broad and maybe even unconstitutional. Confusion and higher compliance costs have surrounded the rule.
EPA Acting Administrator said the new rule is based on the principle that landowners should “be able to tell for themselves whether they have a federal waterway or not without hiring outside consultants.” Officials also emphasized the continuing role of states and tribes in protecting nonfederal waters.
Those who have reviewed the revisions say they’re confident that this will be an improvement, as the proposed rule takes a more straightforward approach, creating a half-dozen categories of waterways that would fall under CWA jurisdiction and defining “navigable waters” in a way that doesn’t require farmers to enlist a team of lawyers and consultants just to determine if the EPA has jurisdiction over their land and is within the scope of the CWA, said Agricultural Retailers Association President and CEO Daren Coppock.
“The proposed rule appears to draw bright lines on jurisdiction to remove confusion while protecting clean water,” Coppock said.
Groups such as the National Milk Producers Federation and the American Farm Bureau Federation have called time and time again on the EPA to rewrite the regulation and narrow its scope.
NMPF President and Chief Executive Officer Jim Mulhern said he looks forward to working with the EPA and U.S. Army Corps of Engineers to “achieve the proper clarity that dairy farmers need on WOTUS to continue to meet our shared commitment to clean water.
“Dairy farmers have a vested interest in the outcome of this rule-making and its potential impact on their operations,” he said.
AFBF President Zippy Duvall said the new rule will “empower” farmers to comply with the law, protect water resources and productively work their land “without having to hire an army of lawyers and consultants.”
Duvall said that, unlike the 2015 WOTUS rule, the new rule protects resources, respects the law and provides greater clarity so agencies and the public can identify regulated federal waterways.
“We will further analyze this new rule in the coming days and will suggest further refinements during the comment period,” he said.
The new rule will be subject to a 60-day public comment period extending from its publication in the Federal Register, which is expected this month.
While the new rule certainly faces pushback from environmentalists and it remains to be seen just how all this will play out in court in the new year, this step to scale back federal oversight and calm the waves a bit can be viewed as good news for agriculture.