The 2015 version of the waters of the U.S. (WOTUS) rule must be permanently rescinded and the prior version of the regulation re-codified to provide certainty for dairy farmers, the National Milk Producers Federation (NMPF) said in comments Aug. 13.

In comments submitted to the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers on Monday, NMPF outlined its support for the agencies’ proposal to repeal the current definition of WOTUS and rewrite it to reflect commonsense approaches to protecting the environment. NMPF also joined numerous farm and food organizations to submit an additional 22 pages of comments that provide an extensive legal and technical assessment of what the two agencies did wrong three years ago in an attempt to update the regulation. 

“Dairy farmers undertake extensive efforts to manage the natural resources that are critical to their livelihoods,” NMPF president and chief executive officer Jim Mulhern said. “WOTUS must provide proper clarity on what falls under its jurisdiction so that farmers can better meet the industry’s shared commitment to clean water.”

In early 2017, the Trump Administration ordered a review of the WOTUS rule in response to concerns many farm groups had raised since the measure was finalized in 2015. Because the WOTUS regulation significantly expanded EPA’s authority over the waterways farmers use for drainage and irrigation, the measure was challenged in a federal appeals court and ultimately was put on hold.

Related:Administration introduces WOTUS supplemental rule

The Clean Water Act (CWA) of 1972 gave the federal government jurisdiction over navigable waters but left the regulation of non-navigable waters to the states. However, over the years, the federal government has continually and wrongfully expanded its authority over these non-navigable waters, according to NMPF.

“The 2015 rule should be repealed and, for absolute clarity, done so permanently,” NMPF said. “We believe the 2015 rule failed to provide regulatory certainty and consistency and exceeded the agencies’ legal authority under the CWA.”

NMPF said the two agencies need to apply the definitions of the WOTUS rule in ways that are consistent with recent Supreme Court decisions and long-standing farming practices. Re-codifying the regulations that existed before the 2015 rule was developed will provide continuity and certainty for dairy farmers, other regulated entities, states governments, agency staff and the public, the comments said.

EPA and the Corps should proceed with a notice-and-comment rule-making process in which the two agencies re-evaluate the definition of WOTUS. NMPF said this must be done to correct the 2015 rule’s lack of clarity on key terms such as “adjacent,” “floodplain” and “significant nexus.”

Related:Trump takes on WOTUS redo

Dairy producers must be able to understand what constitutes federally regulated waters of the U.S. so they can better manage water quality on their farms, NMPF emphasized.

With the repeal docket now closed, it is likely that the 2015 rule will be repealed permanently. NMPF said it will now focus on suggesting modifications to the pre-2015 rule and how it can be changed to provide the necessary clarity and certainty.