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Revised WOTUS rule heads to OMB

Ag groups say both water flow and physical indicators should be necessary to determine presence of federal water.

The Administration has moved its effort to repeal the 2015 waters of the U.S. (WOTUS) rule to the Office of Management & Budget (OMB) -- the last step before formal issuance.

Currently, the rule from the Environmental Protection Agency and the Army Corps of Engineers takes into account more than 600,000 public comments on a revised definition of WOTUS that aims to replace the 2015 rule.

“This is good news and welcome news,” American Farm Bureau Federation president Zippy Duvall said of the advancement of the rule to its final stages before publication.

“For too long, farmers and ranchers have had to live with real regulatory confusion. Some hear they must follow the pre-2015 rule. Others have to follow the 2015 rule, even though courts have found it illegal. The confusion only heightens the risk farmers and ranchers face in these already uncertain times,” Duvall said.

Court rulings have put the 2015 WOTUS rule on hold for 28 states, but it is still in effect in 22.

In a joint opinion article, National Association of State Departments of Agriculture (NASDA) chief executive officer Barb Glenn and National Cattlemen’s Beef Assn. CEO Kendal Frazier said agricultural producers and rural communities view the new water proposal as a “marked improvement from the previous version, but more work is needed to eliminate ambiguity and draw pragmatic jurisdictional lines for landowners.”

The 2015 WOTUS rule initiated a complex web of federal control rather than recognizing the Clean Water Act’s intent to work in conjunction with state laws, the two wrote. Any body of water or wetland within 4,000 ft. of a “WOTUS” is swept under federal jurisdiction, even though many of these features are already subject to state protection. “First and foremost, if the new rule is to be workable, it should avoid redundant regulations and explicitly recognize areas that should be regulated,” Glenn and Frazier noted.

Last month, a federal court found that the 4,000 ft. standard and other portions of the 2015 WOTUS rule violated the law, again confirming the need for further clarity from the rule's rewrite.

In a recent Senate Environment & Public Works Committee hearing, Doug Goehring, NASDA vice president and North Dakota agriculture commissioner, detailed solutions for improving the new water proposal.

“One of the most important recommendations focused on the need to add physical indicators, such as a river bed and banks, as a requirement for satisfying the definition of tributary in the new water rule. Only with understood landmarks can farmers and ranchers independently identify areas that should fall under WOTUS regulations, no matter where the operation is or what type of land it’s on,” Glenn and Frazier noted.

In the 2015 WOTUS rule, physical indicators were used to determine jurisdiction in lieu of flowing water. Common sense suggests that any federal law concerning water regulation should consider when and where water flows, but under the 2015 WOTUS rule, physical indicators alone were enough to subject a landowner to federal oversight. Dry features that do not typically have water suddenly became the domain of Uncle Sam.

“As it currently stands, the Trump Administration’s new water proposal presents the same problem flipped the other way: It requires water, but not the existence of physical indicators. That makes it exceedingly difficult for landowners to determine whether a specific part of their property is inside or outside of federal jurisdiction,” the ag representatives noted.

They suggested that this can be fixed by updating the new definition of tributaries to incorporate physical indicators, such as a river bed and banks. “Both water flow and physical indicators should be necessary to determine the presence of a federal water,” Frazier and Glenn said.

TAGS: Policy
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