Agricultural interests want the Environmental Protection Agency (EPA) to leave the Trump water rule in place, and many have asked the agency for an extension of a public comment period that ended Aug. 31 ahead of a rewrite of the rule.
While a number of agriculture groups provided detailed comments about their positions on a new rule, many ag interests told the agency a 30-day comment period was inadequate to address myriad issues.
EPA told DTN it was reviewing the requests for an extension of time and “will share an update when available.”
Requests for more time came from the Agricultural Retailers Association (ARA), some members of Congress, New Mexico Farm and Livestock Bureau, North Carolina Farm Bureau Federation, Michigan Farm Bureau, Georgia Chamber of Commerce, Alabama Farmers Federation, California Farm Bureau and the Fertilizer Institute, among others.
A federal court in Arizona recently vacated the Navigable Waters Protection Rule (NWPR).
“ARA believes the current 30-day comment period is woefully inadequate for all interested stakeholders to provide the type of in-depth input the agency needs,” the group said in an Aug. 17 letter to EPA.
“EPA Administrator (Michael) Regan, other EPA and U.S. Army Corps of Engineer officials have publicly committed before Congress and other public forums to conduct robust stakeholder engagement as it undertakes this rulemaking process. The scope of jurisdiction under the CWA (Clean Water Act) is fundamentally important to ARA’s members, their farmer customers, and all other impacted agricultural industry stakeholders.”
In a letter to EPA, Reps. Sam Graves (R-MO-6) and David Rouzer (R-NC-7) also requested an extension, saying EPA’s decision to host meetings within “such a short timeframe on a wide range of topics is indicative of a rushed, insincere notice-and-comment process by this administration.
“A mere single month of public meetings is a woefully insufficient amount of time to collect meaningful input on a regulation that will have a profound, long-term impact on the everyday lives of American farmers, businesses, families, and our environment,” they said.
“We urge the agencies to implement a robust operation to effectively collect meaningful stakeholder outreach, as public input from stakeholders who will be most affected is crucial to any transparent rulemaking process.”
When the Biden administration announced plans earlier this summer to rewrite the Trump administration’s NWPR, EPA Administrator Michael Regan said in a news statement the Trump rule—widely supported by agriculture interests—was “leading to significant environmental degradation.”
The agency pointed to “lack of protections” in arid states like New Mexico and Arizona, “where nearly every one of over 1,500 streams assessed has been found to be non-jurisdictional. The agencies are also aware of 333 projects that would have required Section 404 permitting prior to the NWPR, but no longer do.”
In its comments to EPA, the American Farm Bureau Federation (AFBF) and a number of other ag groups signing onto the comments said the agency was relying “heavily on anecdotal and often speculative assertions” when declaring the NWPR as harmful to the environment.
“There are many reasons why the agencies may have made more ‘non-jurisdictional’ findings during the first year of NWPR implementation compared to any given year under prior rules,” AFBF said in its comments.
“For instance, given the NWPR’s clearer definitions and elimination of case-specific assertions of jurisdiction, the agencies may have front-loaded the clearest cases of no jurisdiction.”
Groups question need for rewrite
AFBF said the agencies place “heavy emphasis” on a list of 333 projects that would have required a Section 404 permit with prior water definitions but no longer require a permit with the Trump water rule.
“At bottom, the agencies appear to assume that narrower federal jurisdiction means a complete lack of water quality controls and that third parties will rush to pollute water features that are no longer jurisdictional, without any state oversight and in quantities that will rapidly impair downstream features,” the AFBF said.
“This is pure conjecture. Importantly, the agencies overlook that federal protections remain in place to prevent whatever destruction the agencies (or other stakeholders) seem to fear.”
The letter’s signatories reiterated their support for the Trump water rule, saying they “feel strongly that the NWPR was a clear, defensible rule that appropriately balanced the objective, goals, and policies of the Clean Water Act. We would have liked to see the agencies keep the NWPR in place, rather than revert to definitions of WOTUS that test the limits of federal authority under the Commerce Clause and are not necessary to protect the nation’s water resources.”
Ricketts says states best equipped
In comments to the agency, Nebraska Republican Gov. Pete Ricketts said states have “clear authority” and are “well equipped” to protect waters of the state.
“States are best positioned to manage the water within their borders because of their on-the-ground knowledge of the unique aspects of their hydrology, geology and legal frameworks,” Ricketts said.
“As such, waters of the state such as agricultural waters including farm ponds, stock ponds and irrigation ditches, and man-made dugouts, pits and ponds used for irrigation, should be subject to the exclusive regulatory authority of the state.
“With those points in mind, Nebraska supports a definition of WOTUS that provides for limited federal jurisdiction by adopting a clear and predictable standard for state and federal governmental agencies.”
The North Dakota Corn Growers Association (NDCGA) expressed concern a new rule would return to what the 2015 WOTUS rule represented.
“Most farmers and ranchers also believe the 2015 WOTUS rule was so overreaching it would have granted federal jurisdiction over virtually any waters, including farm ditches, drainage areas, agricultural ponds, and isolated wetlands—and many land areas that only temporarily hold water,” the NDCGA said.
“We believe the Navigable Waters Protection Rule effectively detailed what waters are not subject to federal control, including features that only contain water in direct response to rainfall; groundwater; many ditches, including most farm and roadside ditches; prior converted cropland; farm and stock watering ponds; and waste treatment systems. Therefore, it respected the primary role of states and tribes in managing their own land and water resources.
“We urge EPA and the Department of Army to craft a rule that provides states with regulatory flexibility based on local and current conditions, and better enables producers to care for their land.”— Todd Neeley, DTN staff reporter
