WASHINGTON, D.C. — The U.S. EPA announced last week it will propose a rule to rescind the controversial definition of the “Waters of the United States” (WOTUS) in the Clean Water Act.

 

A 2015 definition of WOTUS gave the federal government broad jurisdiction over land and water, according to many critics of the regulation. The new proposed rule, which is expected to be published in the Federal Register later this month, will repeal WOTUS, which originally was implemented to clarify EPA’s authority over various waters.

Based on several U.S. Supreme Court decisions, EPA’s jurisdiction had included “navigable” waters and waters  with a significant hydrologic connectionto navigable waters. WOTUS broadened that authority to include other water  bodies, including upstream waters andintermittent and ephemeral streams such as the kind farmers use for drainage and irrigation. It also covered lands adjacent to such waters.

EPA Administrator Scott Pruitt intends to give most of the regulatory power over water issues back to state-run agencies. “We are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses,” he said.  “This is the first step in the twostep process to redefine ‘waters of the U.S.’ and we are committed to moving through this reevaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public.”

Indiana officials are pleased with the new direction. Gov. Eric Holcomb said Hoosiers need a “common-sense approach to protect the environment and Hoosier jobs. Indiana knows best how to preserve our state’s waterways, and a one-size-fits-all approach from Washington disrupts the predictable regulatory climate we need for continued innovation and economic growth.”

Lt. Gov. Suzanne Crouch, who is also the state’s secretary of agriculture and rural development, added, “In Indiana, we have repeatedly shown stellar collaboration between the federal government, state government and local governments. However, I believe that the key to Indiana’s agricultural success doesn’t rest with government, but with her people.

“I have witnessed firsthand the results of the consistent and congenial collaboration within our agriculture community. Indiana’s No. 2 ranking nationally in its acreage of cover crops as a means to manage soil health and minimize agricultural runoff is one of those positive results.”

U.S. Sen. Joe Donnelly (D-Ind.), a member of the Senate Agriculture Committee, said, “I encourage the administration to develop a rule that is more workable for Hoosiers. It is important that we get this rule right, and I look forward to working with the EPA and the administration to ensure we have a collaborative effort with farmers, businesses, local governments and environmental groups to ensure our water is clean and safe.”

Farm leaders from many states have been harsh critics of WOTUS. “By requiring every puddle and pond to be subject to federal regulation, WOTUS represents exactly how executive overreach from Washington can harm Kentucky farmers and all of rural America,” Kentucky Ag C o m m i s s i o n e r Ryan Quarles said. 

 

“Earlier this year, I met with Administrator Pruitt to ask him to repeal this rule and to uphold the law in the spirit of cooperative federalism between the national and state governments. I am proud to stand with President Trump and Administrator Pruitt as they work to undo the harmful rules and regulations enacted by the previous administration.”

Once the proposed rule is published, there will be a public comment period. Many environmental lobby groups plan to object to any changes to WOTUS.

“In yet another clear signal that the Trump administration cares little for the health and safety of communities across the United States, the EPA is reportedly issuing a proposed rule to undo the Clean Water Rule that was enacted under Obama’s last term,” said Wenonah Hauter, executive director, Food & Water Watch. “Although far from perfect, the Clean Water Rule was a step in the right direction; now Trump wants to take giant steps backwards in clean water protections, back to the days of massive fish kills and rivers on fire.” 

 

Most federal lawmakers want the rule rescinded. “WOTUS has never been about clean water – it was about feeding the Obama EPA’s insatiable appetite for power. Well, that ends now,” said House Agriculture Committee Chair K. Michael Conaway (R-Texas).

Rep. Adam Kinzinger (R-Ill.) added, “The repeal of the WOTUS rule is good for property owners, farmers, businesses and rural communities here in Illinois and across the United States who would have suffered under the burdensome overreach of the federal government.”

U.S. Rep. John Shimkus (R-Ill.) said former President Obama’s administration took the Clean Water Act to an extreme. “Congress never intended for EPA and the Army Corps of Engineers to have jurisdiction over ditches, creeks and man-made ponds.”

 

Farm groups celebrate National Pork Producers Council President Ken Maschhoff, a farmer from Carlyle, Ill., said the NPPC led the way in the fight against WOTUS.

NPPC produced maps showing the increased reach of the EPA. For example, WOTUS gave EPA jurisdiction across 77 percent of Missouri. The NPPC filed a suit in U.S. District Court and presented a brief to a U.S. Court of Appeals. That lawsuit halted implementation of the WOTUS rule after its Aug. 28, 2015, effective date.

“It was the product of a flawed regulatory process that lacked transparency, and likely would have been used by trial lawyers and environmental activists to attack farmers,” Maschhoff said. “We’re extremely grateful to President Trump and EPA Administrator Pruitt for recognizing the dire consequences this ill-advised Obama-era regulation would have had on pork producers and all of American agriculture.”

American Soybean Assoc. Vice President and Iowa farmer John Heisdorffer said the change is a step toward greater regulatory certainty for soybean farmers. “The WOTUS rule, however, subjected the creeks and streams and ditches that crisscross our operations under an overly broad, one-size-fits-all regulatory definition that made no sense for our individual farms,” he said.

Texas farmer Wesley Spurlock, president of the National Corn Growers Assoc., said clear lines are needed to know who has jurisdiction over the Clean Water Act. 

 

“(The new rule) will enable farmers to implement best management practices such as grass waterways and buffer strips without the burden of bureaucratic red tape or fear of legal action. These types of land improvements have enormous water quality benefits, such as reducing sediment and nutrient runoff – a win for farmers and the environment.”

National Cattlemen’s Beef Assoc. President Craig Uden added, “It’s important to remember, though, that this rule isn’t dead yet. The rulemaking process continues, and NCBA will submit and solicit additional comments on behalf of America’s cattle producers so that they finally get the sanity and clarity they need on land use policy.”