Trump Dials Back WOTUS

1 Mar 2017

By Chris Clayton
DTN Ag Policy Editor
and
Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- With much expected delight from the farm community, President Donald Trump followed through on a campaign promise Tuesday by signing an executive order requiring the U.S. Environmental Protection Agency to begin withdrawing the controversial Obama-era Clean Water Act rule, defining waters of the United States.

Commonly called WOTUS, the waters of the U.S. rule is considered as one of the defining regulatory orders under the Obama administration tied to the term "regulatory overreach."

WOTUS was issued initially in 2015 as a way to clarify EPA and U.S. Army Corps of Engineers authority over areas around waterways where the federal government has authority to either require a federal permit or stop any activity that would disturb the waterway. Yet, under the detailed description by EPA in the Federal Register and the unclear term "significant nexus" for a waterway, EPA maps have suggested nearly any waterway in the country could come under federal jurisdiction.

The rule never went into effect as it was challenged in court by at least 25 states and business lobbies, including several farm organizations. Currently, the WOTUS rule is tied up in the U.S. Court of Appeals for the Sixth Circuit, which put the rule on hold until the legal cases were resolved. The U.S. Supreme Court has agreed to hear a challenge on whether the Sixth Circuit is the proper venue for the cases.

The executive order directs the EPA and the Corps of Engineers to review the rule and consider a rewrite or rescind.

In a press release Tuesday, EPA Administrator Scott Pruitt promised to immediately implement the president's executive order.

"EPA intends to immediately implement the executive order and submit a notice to the Office of the Federal Register announcing our intent to review the 2015 Rule, and then to propose a new rule that will rescind or revise that rule," Pruitt stated in the release. "The President's action today preserves a federal role in protecting water, but it also restores the states' important role in the regulation of water."

American Farm Bureau Federation President Zippy Duvall said in a statement to DTN Tuesday the president's action is good for farmers.

"President Trump's executive order to ditch the waters of the U.S. rule is a welcome relief to farmers and ranchers across the country today," he said.

"The flawed WOTUS rule has proven to be nothing more than a federal land grab aimed at telling farmers and ranchers how to run their businesses. The Environmental Protection Agency failed to listen to farmers' and ranchers' concerns when drafting the rule and instead created widespread confusion for agriculture. Under the rule, the smallest pond or ditch could be declared a federal waterway. Farmers and ranchers have been calling for a common-sense approach to regulatory reform, and today the Trump administration responded to that call."

"America's pork producers are very pleased that the president ordered EPA and the Corps of Engineers to repeal or rewrite this ill-conceived, overbroad regulation," said NPPC President John Weber, a pork producer from Dysart, Iowa.

"The WOTUS rule was a dramatic government overreach and an unprecedented expansion of federal jurisdiction and control over private lands. It was the product of a flawed regulatory process that lacked transparency and no doubt would have been used by trial lawyers and environmental activists to attack farmers."

Craig Uden, president of the National Cattlemen's Beef Association, said in a statement the order will help provide relief to ranchers.

"This extremely flawed rule would force ranchers and feedlot operators to get permits or risk excessive federal penalties despite being miles away from any navigable water," he said.

"It would be one of the largest federal land grabs and private-property infringements in American history, and the president should be applauded for making EPA and the Corps reconsider this debacle. Ultimately, this rule should be taken out behind the barn and put out of its misery."

Opponents claim the rule would give the regulatory agencies broad authority over basic farming practices simply because water may pool somewhere after a rain or fill a ditch. Speaking at a USDA conference last week, Duvall called the WOTUS rule "dangerous to agriculture and across America."

The executive order was also conveniently timed. Scott Pruitt, the new EPA administrator, is set to talk to American Farm Bureau Federation members Tuesday just outside of Washington, D.C., at the group's "Advocacy Conference."

The executive order also is likely to get some mention by President Trump as he talks about rolling back burdensome regulations, his domestic agenda on infrastructure, health care and spending during his first State of the Union speech Tuesday evening starting at 8 p.m. CT.

Under the executive order, EPA and the Army Corps of Engineers will be required to review the rule, though it will not be immediately withdrawn. Instead, the order will ask the two agencies to consider a different standard of jurisdiction for the Clean Water Act laid out by the late Supreme Court Justice Antonin Scalia in one of the two Supreme Court cases that led EPA and the Corps to draft the rule.

Withdrawing the rule would essentially reboot the process of defining waters of the U.S. for federal authorities. EPA would be faced with writing a new proposed rule that would go through all of the procedural hoops such as comment periods and rewrites. EPA also would have to justify how its new rule would meet the standards set out in the earlier Supreme Court decisions.

Scalia, in a 2006 case known as Rapanos v. U.S., argued that federal jurisdiction for laws such as the Clean Water Act should only apply to bodies of water with a permanent flow or non-navigable waterways that connect surface water with areas with permanent flow. That's considered a far more limited approach than EPA took in drafting the current rule.

Besides the American Farm Bureau Federation, agriculture groups that joined lawsuits seeking to overturn the WOTUS rule included the National Pork Producers Council, American Forest and Paper Association, National Corn Growers Association, Matagorda County Farm Bureau, National Alliance of Forest Owners, National Cattlemen's Beef Association, Public Lands Council, Texas Farm Bureau and the U.S. Poultry and Egg Association.

Chris Clayton can be reached at Chris.Clayton@dtn.com

Todd Neeley Can be reached at Todd.Neeley@dtn.com

Follow them on Twitter @ChrisClaytonDTN and @toddneeleyDTN

(BAS/ES)