Ag groups support rescinding, re-proposing WOTUS rule

"Fresh start" on water rule using "approach that complies with past Supreme Court rulings" will be in agriculture industry's best interests.

Earlier this year, the Environmental Protection Agency released a proposal that would eliminate the 2015 waters of the U.S. (WOTUS) rule and allow the agency to develop a rule that does not create a huge regulatory burden for agriculture. The public comment period deadline on the WOTUS rule closed on Sept. 27. The agricultural community widely supports rescinding the 2015 rule and encouraged EPA to re-propose a solution that offers greater clarity for farmers.

In their comments, more than 100 agricultural organizations outlined support for the agency's proposal to rescind WOTUS and recommended that EPA and the Army Corps of Engineers move quickly to reissue a proposed new definition of a “water of the U.S.” that is “supported by and consistent with the text of the Clean Water Act, Supreme Court precedent, constitutional limits and the balance of federal and state rights and responsibilities that Congress intended.”

The comments also noted that the rule provided none of the clarity and certainty it promised. “Instead, it created confusion and risk by providing the agencies with almost unlimited authority to regulate, at their discretion, any low spot where rainwater collects, including common farm ditches, ephemeral drainages, agricultural ponds and isolated wetlands found in and near farms and ranches across the nation,” the coalition noted.

The National Association of Wheat Growers (NAWG) also commented that the 2015 regulation oversteps the federal government's role and should allow for state actions, respecting the roles of cooperative federalism. NAWG president David Schemm, who farms in Sharon Springs, Kan., said, “EPA should not attempt to regulate in areas that are within the jurisdiction of state authority.”

The National Milk Producers Federation (NMPF) told EPA that the dairy industry supports the two-step process to roll back the existing WOTUS regulation and generate a new policy that provides farmers greater certainty in the future.

“A fresh start and a more reasonable approach that complies with past Supreme Court rulings will be in the best interests of the environment and dairy farmers,” Jamie Jonker, NMPF vice president for sustainability and scientific affairs, said in comments to EPA. “We are committed to working with the EPA and the Army Corps of Engineers to find effective ways to protect America’s water supplies.”

Rescinding the 2015 policy – which is currently not being enforced because an appeals court suspended it last year, pending the outcome of several lawsuits – is the first step in a two-part process. In the forthcoming second step, EPA will need to propose a new rule that conforms to the various Supreme Court cases affecting definitions for what is considered a water of the U.S.

In NMPF’s letter, Jonker said EPA and the Corps will need to correct the ambiguity resulting from the 2015 rule’s lack of clarity on key terms and definitions, such as “adjacent,” “floodplain” and “significant nexus.”

“The agencies’ new notice-and-comment rule-making needs to provide dairy farmers with certainty as to what constitutes navigable waters of the United States by clearly complying with the Supreme Court decisions,” NMPF wrote to EPA. “We look forward to working with you in the future for the proper clarity that dairy farmers need on WOTUS to continue to meet our shared commitment to clean water.”

The National Corn Growers Assn. (NCGA) asked EPA to rescind the 2015 rule and write a new rule that provides farmers with clarity and certainty, reduces red tape and does not discourage farming practices that improve water quality.

NCGA president Wesley Spurlock called the 2015 WOTUS rule inconsistent with the aims of the Clean Water Act and noted that the rule also “has the perverse effect of making it harder for farmers to practice good soil and water conservation, nutrient management and water quality protection practices.”

Farming practices such as grass waterways and buffer strips reduce sediment and nutrient runoff. Instead of encouraging these types of farming practices, the 2015 rule effectively discouraged them due to both the bureaucratic red tape and fear of legal action.

Illinois Farm Bureau president Richard Guebert Jr. filed comments on behalf of the bureau and its members, stating, “From the beginning, we have said the rule was fatally flawed, allowing the government far too much latitude to oversee private property and leaving farmers and land owners with little information as to which portions of their property may fall under the government’s jurisdiction.

“Illinois farmers care deeply about the land and water where they farm, going above and beyond to implement voluntary efforts to maintain and protect water quality. Unfortunately, the 2015 rule, as written, would have done little to improve water quality and would have further complicated farmers’ current conservation efforts,” Guebert added.

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