Repeal of WOTUS

Environmental Protection Agency Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works R.D. James on Sept. 12, 2019, announced the repeal of the Obama administration’s Clean Water Rule, better known as the Waters of the United States rule, or WOTUS.

The rule has never taken effect because there have been court challenges. but the repeal formally restores the previous regulatory regime nationwide until the Trump administration releases its own rule to deal with the issue of conflicting Supreme Court rulings on waters.

Republicans and farm leaders praised the decision, while environmental groups, particularly those with hunting and fishing interests, criticized it.

In a joint news release, Wheeler and James said that the rule “impermissibly expanded the definition of ‘waters of the United States’ under the Clean Water Act.”

“The agencies are also recodifying the longstanding and familiar regulatory text that existed prior to the 2015 Rule — ending a regulatory patchwork that required implementing two competing Clean Water Act regulations, which has created regulatory uncertainty across the United States,” they said.

Wheeler added, “Today’s Step 1 action fulfills a key promise of President Trump and sets the stage for Step 2 — a new WOTUS definition that will provide greater regulatory certainty for farmers, landowners, home builders, and developers nationwide.”

Wheeler and James also published an opinion column in the Des Moines Register explaining the administration’s position.

Although farm leaders campaigned against the rule, Wheeler and James made the announcement at the headquarters of the National Association of Manufacturers.

At that event, NAM President and CEO Jay Timmons said, “America is now one step closer to smart and balanced regulation that protects our nation’s precious water resources.”

“Courts already declared the 2015 rule illegal, following years of litigation that included a 9-0 victory for the NAM at the Supreme Court, so manufacturers are pleased to see it officially struck from the books,” Timmons said.

“The old water rule, which sought to regulate dry land, was confusing and counterproductive. Manufacturers are committed to environmental stewardship, so now we look forward to a new, more effective rule to protect clean water.”

Agriculture Secretary Sonny Perdue said “Repealing the WOTUS rule is a major win for American agriculture.”

“The extreme overreach from the past administration had government taking the productivity of the land people had worked for years,” Perdue said.

On the Hill

Sen. Chuck Grassley, R-Iowa, said, “Excessive government regulation stifles production, makes living and working harder for millions of Americans and slows economic activity.”

“We’ve seen this time and again, particularly when it comes to the WOTUS rule. President Trump and his administration have lifted a heavy burden off the shoulders of farmers, manufacturers and small businesses in Iowa at a pivotal moment when they’re facing challenges from every angle.”

House Agriculture Committee ranking member Michael Conaway, R-Texas, said, “I commend the Trump administration for repealing the land grab attempted under President Obama through its Waters of the U.S. regulation.”

Senate Agriculture Appropriations Subcommittee Chairman John Hoeven, R-N.D., praised the repeal and explained that the Trump administration’s proposed replacement “recognizes the primary role of states and tribes in managing water resources within their borders and will help ensure the EPA and the U.S. Army Corps of Engineers do not exceed the authority granted by Congress under the Clean Water Act.”

Hoeven said that specifically, the proposal would:

▪ “Cover only those waters that are physically and meaningfully connected to traditional navigable waters.

▪ “Not apply to short-lived water features that result from rainfall or to wetlands physically separated from navigable waters by, for example, a berm, levee or upland.

▪ “Not include most farm and roadside ditches.”

But Sen. Dianne Feinstein, D-Calif., said, “I’m dismayed by reports that the Trump administration will repeal a key 2015 clean water rule and replace it with its own, as-yet unwritten replacement. This leaves a critical issue in flux.”

“California has lost more than 90% of its wetlands in the last two centuries,” Feinstein said. “Federal protections currently safeguard the remaining 300,000 acres. Reports also suggest that more than half of all inland streams in the state could lose federal protection if this rule is repealed.”

National Association of State Departments of Agriculture (NASDA) CEO Barb Glenn praised the rule but said, “As the EPA and Army Corps continue developing a replacement WOTUS rule, adding a physical indicator standard will help ensure landowners are provided with the necessary certainty.”

Farm groups

The American Soybean Association said the Obama rule “was an unworkable and impractical regulation” and that the repeal was “great news for soybean and other farmers” because it would put an end to the state-by-state patchwork of regulations.

But ASA also noted that it is only “a step toward regulatory certainty” because the Trump administration still has to develop its own rule.

The National Corn Growers Association said it would review the repeal rule and “is encouraged that we are one step closer to ensuring farmers have the clarity and certainty they have long-sought to effectively implement stewardship practices on their operations.”

American Farm Bureau Federation President Zippy Duvall said, “Farmers and ranchers share the goal of ensuring clean water, but the 2015 Waters of the United States rule was unreasonable and unworkable. It made conservation more difficult and created huge liabilities for farmers.”

“No regulation is perfect, and no rule can accommodate every concern, but the 2015 rule was especially egregious,” Duvall said.

“We are relieved to put it behind us. We are now working to ensure a fair and reasonable substitute that protects our water and our ability to work and care for the land. Farm Bureau’s multi-year effort to raise awareness of overreaching provisions was powered by thousands of our members who joined with an array of allies to achieve this victory for clear rules to ensure clean water.”

National Cotton Council Chairman Mike Tate said, “EPA’s decision ends the uncertainty caused by the WOTUS rule and the resulting, sometimes conflicting, court verdicts that led to a patchwork of regulations nationwide.”

“While nothing is perfect, we foresee the new rule as one that does not label as ‘waters of the U.S.’ those vast areas of dry land that have been farmed for generations.”

National Pork Producers Council President David Herring said, “We’re pleased the EPA is moving towards a common sense WOTUS rule that works with — not against — farmers to protect our nation’s waterways.”

Conservation groups

Conservation groups said jointly that “the administration’s action will leave roughly 50% of wetlands and 60% of stream miles across the country vulnerable to pollution and destruction.”

“The 2015 Clean Water Rule had clarified longstanding Clean Water Act protections for millions of acres of wetlands and many headwater streams that protect communities from flooding, contribute to the drinking water supplies of one in three Americans, and provide essential fish and wildlife habitat that supports a robust outdoor recreation economy worth $887 billion,” the groups said.

“Sportsmen and women are outside every day experiencing the benefits of clean water,” said Whit Fosburgh, president and CEO of the Theodore Roosevelt Conservation Partnership.

“Rolling back these protections for wetlands and headwater streams threatens our hunting and fishing traditions and the outdoor economy that powers our communities.”

“No one wants to fish a lake covered in toxic algae, duck hunt in a bulldozed wetland, or pitch a tent next to a creek filled with feces,” said Collin O’Mara, president and CEO of the  National Wildlife Federation.

“Unfortunately, this administration is working on multiple fronts to rewrite the rules that protect our waters, hoping no one will notice. The collective impact of these changes would be devastating for public health and wildlife across the country—and we will continue to fight to protect America’s waterways every step of the way.”

“Clean water is a basic right of every American,” said Chris Wood, president and CEO of Trout Unlimited.

“To be effective, the Clean Water Act must be able to control pollution at its source. Unfortunately today’s action by the EPA places the health of 60 percent of the stream miles and the drinking water of one in three Americans at risk.”

“More than 100 million people across the U.S. engage in fish- and wildlife-based recreation, approximately half of whom participate in fishing,” said Patrick Berry, president and CEO of Fly Fishers International.

“It is clear the opportunities available to enjoy these outdoor pursuits is directly limited by the health of our natural systems and their ability to support healthy and abundant populations of fish and wildlife. Rolling back protections of wetlands, our lakes streams and rivers — some of the most diverse and productive wildlife habitats — not only compromises our natural heritage, but threatens the cultural and economic value of recreational fishing.”

“This rule will irreparably impact wetlands in America’s duck factory — the prairie pothole region — and threaten the health of riparian habitat critical for big game and 80 percent of all wildlife species,” said Land Tawney, president and CEO of Backcountry Hunters and Anglers.

“Weakened protections translate to lost access and reduced opportunities for hunting and fishing. Hunters and anglers must not stand for shortsighted polices that compromise the integrity of fish and wildlife habitats that have been safeguarded for decades under the Clean Water Act.”

“EPA’s decision to repeal the Clean Water Rule is wholly unsupported by science, can’t be squared with the clear intent of the Clean Water Act, and fails the common sense test,” said Scott Kovarovics, executive director of Izaak Walton League of America.

“To make matters worse, this is only a prelude to the second blow when EPA finalizes a new rule later this year that will further undermine protections for small streams, wetlands, and drinking water supplies across America.”

“The EPA is tossing out 50 years of peer-reviewed science and in doing so threatens to undermine the integrity of the nation’s waters that support fish and wildlife,” said Doug Austen, executive director of the American Fisheries Society.

“Allowing unchecked pollution and destruction in the waters and wetlands in the upper reaches of a watershed imperils the sustainability of fish stocks in both upstream and downstream waters and places valuable recreational fisheries and endangered species at risk.”

–The Hagstrom Report