Farm groups see WOTUS repeal as step towards regulatory certainty

Associated Press
The Trump administration on Thursday, Sept. 12, 2019, revoked an Obama-era regulation intended to protect many U.S. wetlands and streams from pollution but was opposed by developers and farmers who said it hurt economic development and infringed on property rights.

Two years ago, the U.S. Environmental Protection Agency vowed to repeal the 2015 Waters of the United States (WOTUS) rule. This week's release of the final rule, which abolished the Obama-era regulation, is welcome news for farmers and landowners.

The WOTUS rule raised serious concerns about the expansion of federal power over private property rights, with the vague defintion causing confusion among farmers about what waters fell under the rule's parameters – as well as adding more red tape to the regulatory process.

EPA Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works R.D. James call the Obama rule "an egregious power grab" that led to even isolated ponds being subjected to federal regulation.

Wheeler and James say their proposed rule would clearly define "where federal jurisdiction begins and ends." They say a new definition would be finalized in the winter.

Environmental groups criticized the administration's action, the latest in a series of moves to roll back environmental protections put into place under President Barack Obama.

Environmental Protection Agency Administrator Andrew Wheeler, right, signs a document in front of Assistant Secretary of the Army for Civil Works R.D. James to revoke the Waters of the United States rule, an Obama-era regulation that provided federal protection to many U.S. wetlands and streams, Thursday, Sept. 12, 2019, in Washington. (AP Photo/Patrick Semansky)

The WOTUS rule defined the waterways subject to federal regulation. Scrapping it "...eliminates an ongoing patchwork of clean water regulations and restores a longstanding and familiar regulatory framework," Wheeler said at a news conference in Washington, D.C.

Wheeler and R.D. James, assistant secretary of the Army for civil works, signed a document overturning the rule and temporarily restoring an earlier regulatory system that emerged after a 2006 ruling from a sharply divided Supreme Court.

The agencies plan to adopt a new rule by the end of the year that is expected to define protected waterways more narrowly than the Obama policy.

U.S. Secretary of Agriculture Sonny Perdue said the repeal of WOTUS was a major win for agriculture.

U.S. Secretary of Agriculture Sonny Perdue said the repeal of WOTUS was a major win for agriculture.

"The extreme overreach from the past Administration had government taking the productivity of the land people had worked for years," Perdue said. "Farmers and ranchers are exceptional stewards of the land, taking great care to preserve it for generations to come. President Trump is making good on his promise to reduce burdensome regulations to free our producers to do what they do best—feed, fuel and clothe this nation and the world."

The Clean Water Act requires landowners to obtain federal permits before developing or polluting navigable waterways such as rivers and lakes. But disputes have long persisted over what other waters are subject to regulation — particularly wetlands that don't have a direct connection to those larger waters, plus small headwater streams and channels that flow only during and after rainfall.

Environmentalists contend many of those smaller, seemingly isolated waters are tributaries of the larger waterways and can have a significant effect on their quality. Denying them federal protection would leave millions of Americans with less safe drinking water and allow damage of wetlands that prevent flooding, filter pollutants and provide habitat for a multitude of fish, waterfowl and other wildlife, they said.

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National Cattlemen's Beef Association President Jennifer Houston said cattle producers work hard to ensure that natural resources remain pristine and to implement conservation practices to protect water resources.

"The WOTUS rule was an illegal effort by the federal government to assert control over both land and the water," Houston said. "After years of fighting in the halls of Congress, in the courts and at the EPA, cattle producers will sleep a little easier tonight knowing that the nightmare is over."

Wheeler said regulators had gone far beyond the intent of Congress under the 1972 clean water law.

"The 2015 rule meant that more businesses and landowners across the U.S. would need to obtain a federal permit to exercise control over their own property, a process that can cost tens of thousands of dollars and take months or even years to complete," he said. "It also put more local land-use decisions in the hands of unelected bureaucrats. Many Americans balked at this idea, and rightfully so."

Soy grower and President of the American Soybean Association Davie Stephens said EPA's action is a significant step towards greater regulatory certainty for soybean farmers.

"We agree with the goal of assuring clean water, but in reality, the proposed rule was an unworkable and impractical regulation, especially for farmers and ranchers," he said. "Creeks, streams and ditches on our land were unduly subjected to a broad, one-size-fits-all regulatory definition that made no sense for individual farms and went beyond the intent of Congress."

President Donald Trump had ordered the EPA and Army Corps to develop a replacement policy that has a more restrictive definition of protected wetlands and streams.

The Natural Resources Defense Council said the administration's action would be challenged in court.

"The Clean Water Rule represented solid science and smart public policy," the group said in a statement. "Where it has been enforced, it has protected important waterways and wetlands, providing certainty to all stakeholders."

American Farm Bureau Federation President Zippy Duvall

Duvall said the 2015 rule had generated a greater sense of urgency among its membership than any other issue.

"When you take the private property rights from a man that's worked all his life ... to grow the food and fiber for all of us to sit down and enjoy three times a day, it's something he just can't stand," Duvall said.

But Laura DeYoung, who runs a small sheep farm near Peninsula, Ohio, said she favored federal oversight to protect Lake Erie, where agricultural phosphorus runoff is blamed for large algae blooms.

"Nothing in the Obama regulations that came out prevented me from farming the way I was previously farming," she said.

The question of which waters are covered under the Clean Water Act has inspired decades of lawsuits and numerous bills in Congress.

The Supreme Court in 2006 produced three differing opinions, leading the Obama administration to craft its rule. It provided federal oversight to upstream tributaries and headwaters, including wetlands, ponds, lakes and streams that can affect the quality of navigable waters.

The regulation drew quick legal challenges from 31 states and court rulings blocking its implementation in some. It was effective in 22 states, Washington, D.C., and U.S. territories before the Sept. 12 action.

Betsy Southerland, who was director of science and technology in EPA's Office of Water during the Obama administration, said revoking its policy would create further regulatory confusion.

"This repeal is a victory for land developers, oil and gas drillers and miners who will exploit that ambiguity to dredge and fill small streams and wetlands that were protected from destruction by the 2015 rule because of their critical impact on national water quality," Southerland said.

Sen. John Barrasso, a Wyoming Republican and chairman of the Senate Committee on Environment and Public Works, applauded the Trump administration move, saying the Obama rule "would have put backyard ponds, puddles and prairie potholes under Washington's control."

Colleen Kottke of the Wisconsin State Farmer contributed to this report.