The Waters of the United States (WOTUS) Rule is again in the news and still top-of-mind for those it impacts, including America’s farmers and ranchers. On the table now is a proposal to amend the rule to delay the effective date of the 2015 rule for two years after the proposed rule’s publication in the Federal Register on Nov. 22, 2017.
This amendment, as announced in a Nov. 16, 2017 press release from the U.S. Environmental Protection Agency and U.S. Department of the Army (the agencies), would give the agencies the time needed to reconsider the definition of WOTUS.
The 2015 rule, which redefined the scope of where the Clean Water Act applies, had an effective date of Aug. 28, 2015. Implementation of the 2015 rule is currently on hold as a result of the Sixth Circuit’s nationwide stay of the rule, but that stay may be affected by a pending Supreme Court case. The 2015 rule is also stayed in 13 states due to a North Dakota district court ruling.
Scott Yager, National Cattlemen’s Beef Association (NCBA) chief environmental counsel, was asked if a decision by the Supreme Court could void the rule, making the delay a moot point. He explained, “The Supreme Court is deciding which court the issue starts in, so in the immediate future, no, the Supreme Court won’t have the opportunity to void the rule. However, I expect the underlying issue to go back to the Supreme Court in the near future which would give the justices an opportunity to decide whether or not the rule is illegal.”
Yager added, “All the WOTUS cases are on hold until the Supreme Court determines whether they start at District or Appeals court.”
The agencies say they are taking this action to provide certainty and consistency to the regulated community.
“Today’s proposal shows our commitment to our state and tribal partners and to providing regulatory certainty to our nation’s farmers, ranchers and businesses,” said EPA Administrator Scott Pruitt. “This step will allow us to minimize confusion as we continue to receive input from across the country on how we should revise the definition of the ‘waters of the United States.’”
Ryan Fisher, Acting Assistant Secretary of the Army (Civil Works), explained, “The Army, together with the Army Corps of Engineers, propose this rule with EPA to help continue to provide clarity and predictability to the regulated public during the rule-making process. We are committed to implementing the Clean Water Act Section 404 regulatory program as transparently as possible for the regulated public.”
The action follows President Donald Trump’s executive order on Feb. 28, 2017 on “Restoring the rule of law, federalism, and economic growth by reviewing the ‘Waters of the United States’ Rule.” That order, the agencies explained, says that it is in the national interest to ensure that the nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the states under the Constitution.
The agencies had earlier proposed a two-step process to reconsider the 2015 rule; this new proposal is separate from that process. The comment period for the step 1 rule closed in September. However, the agencies are also in the process of holding listening sessions with stakeholders as they work to develop a proposed step 2 rule that would revise the definition of WOTUS.
Taking part in the discussion, the NCBA and Public Lands Council were represented in a hearing on Nov. 29. Jim Chilton, a fifth-generation rancher from Arivaca, AZ, provided testimony before the House Committee on Science, Space and Technology’s subcommittee on environment.
In his comments, Chilton expressed appreciation of the proposal to withdraw the rule. He told the subcommittee, “The 2015 rule, in my opinion, unlawfully burdened my ranching operation since I could not determine whether I would be in compliance or out of compliance on any necessary ranch improvement involving any of the typical southern Arizona dry washes on my ranch, due to the vagueness of the rule. The possibility that features like small dry washes on Chilton Ranch could be treated as waters of the United States created uncertainty about whether and how Chilton Ranch could use its private land and what regulatory requirements would apply to particular uses.”
Chilton went on to explain the financial burdens of the existing rule, saying that his attempt to put in a small ranch road in order to cross a dry wash became so time consuming and expensive that he abandoned the project all together—after spending $40,000 on lawyers and consultants.
Talking about what can or should be done differently as the rule is rewritten, Chilton said, “They can simply define very clearly what water of the United States is, and let the states and counties decide how dry washes should be regulated—not somebody at an EPA or Corps of Engineers level.”
In the Nov. 29 Ag Alert newspaper, California Farm Bureau Federation Senior Counsel Kari Fisher said she hopes the two-year period “allows the agencies ample time to properly rewrite the WOTUS rule to avoid over-expansive misapplication of the Clean Water Act while protecting water quality, and providing farmers and ranchers with needed clarity and consistency.”
Along with providing the agencies more time on the rule, she said the delay would prevent the agencies from having to change course abruptly, depending on how the U.S. Supreme Court rules in a case affecting the rule.
The notice in the Federal Register said that the proposed rule would not establish any new regulatory requirements. “Rather, it will add an applicability date to the 2015 rule, leaving in place the current legal status quo while the agencies continue to engage in substantive rulemaking to reconsider the definition of the ‘waters of the United States.’”
The agencies will be collecting public comment on this proposal until Dec. 13, 2017 and have indicated they plan to move quickly to take final action in early 2018. To read the proposal and to comment onlinem go to www.epa.gov/wotus-rule. — Rae Price, WLJ editor
