Taking the stage at a Galt House where he worked as a bell hop while in college, Kentucky native and US EPA Administrator Scott Pruitt wasted no time telling the audience that the Trump administration was about to shed baggage left behind by the Obama Administration’s EPA. “Waters of the US” is likely the biggest reason why some agriculture groups were critical of the Obama Administration. The EPA’s regulation of the legislation that defined water sources on private property had been a focal point during last year’s elections. Friday there were cheers when Administrator Scott Pruitt promised that change is months away. He accused the former administration of “over-reach” in its defining of “WOTUS” and said a replacement should be in place by in the middle of next year.
The Waters of the United States rule, passed by administrative fiat in June 2015, gave the federal government jurisdiction over nearly every river, lake, creek, estuary, pond, swamp, prairie pothole, irrigation ditch, and intermittent rivulet in the U.S. It’s a regulation that can force a rancher to spend $40,000 trying to get permission to grade a road through a dry wash that carries water only during occasional summer rainstorms—and then give up rather than pour more resources into the fight. After the Environmental Protection Agency (EPA) issued the rule, 33 states and more than 70 private sector organizations immediately challenged it in the courts for being too broad. In October 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay on implementing the regulation.
Federal regulation of waterways may not be the first issue that comes to mind in a desert state like Arizona, but don’t tell that to Pima County cattle rancher Jim Chilton. Chilton was one of two Arizonans invited to testify Wednesday on the Waters of the United States rule, an Obama administration plan to streamline regulation of waterways. Critics charge that the plan, which never took effect, just muddied the waters and Chilton called it a “form of tyranny.” “In my view, the 2015 WOTUS rule empowered bureaucrats to impose their personal views without concern for being called to account for their actions,” Chilton said in his prepared testimony. “We need a reasonable interpretation shared by citizens on what constitutes a navigable river and what is a genuine nexus to a navigable river.”
Environmental Protection Agency chief Scott Pruitt found a friendly audience Thursday in his native Kentucky as he lambasted an Obama-era clean-water rule. Speaking to a Kentucky Farm Bureau audience, Pruitt said the rule aimed at protecting small streams and wetlands from development and pollution was an example of federal overreach. He said it tried to redefine the Clean Water Act to cover puddles, dry creek beds and drainage ditches. “The agency took a definition under the Clean Water Act and turned it into something that Congress never intended,” Pruitt said.
To protect navigable waters, the Clean Water Act’s jurisdiction extends to waters linked to navigable ones. But because essentially all waters are connected, under the 2015 Waters of the United States (WOTUS) rule, agencies will assess the degree of connectivity on a case-by-case basis. A recent executive order from President Donald Trump asks the Environmental Protection Agency to rewrite the WOTUS rule using Justice Antonin Scalia’s “continuous surface connection” definition. All this confusion threatens property rights.
Farmers often will not know if their land is under Clean Water Act jurisdiction, yet they can face fines of $25,000 per day of violation for certain activities. If farmers are aware that their land is under Clean Water Act jurisdiction, then they must apply for costly permits: up to $28,915. Moreover, the WOTUS rule fails to address pollution from nonpoint sources and ongoing farming activity. It does not estimate the cost and benefit trade-offs well. In the past 25 years, water quality has seldom improved.
The top Republican on the House science panel’s environment subcommittee says there are “bubbling, nascent discussions” on potential legislation to limit the reach of the Clean Water Act (CWA), but any such bill could be far off despite subcommittee members voicing support for restricting the law’s scope during a Nov. 29 hearing. Speaking to Inside EPA after the hearing on states’ roles in defining the “waters of the United States” subject to CWA protections, the House Science, Space & Technology Committee Chairman Andy Biggs (R-AZ) said legislators have talked about a possible bill to amend the water law, rather than leaving the definition up to regulators, but with little progress so far. “Some bubbling, nascent discussions have happened, but it’s not really gone beyond that,” Biggs said.
Everyone agrees that we need clean air and clean water; still, West Virginians should not be forced to choose between economic prosperity and a clean environment. We expect both. That is why federal environmental laws like the Clean Water Act, and the Clean Air Act provide for cooperation between federal authorities and state officials. This structure allows states to make decisions that are best for local communities’ economic and environmental needs.
Last month, the Trump administration rolled back the birth-control mandate. Scott Pruitt, administrator of the Environmental Protection Agency, said the Waters of the United States rule will suffer a similar fate. “We’re providing regulatory clarity there,” Mr. Pruitt said at the conference Friday. “Two-step process, actually: We’re withdrawing the deficient rule from 2015. That process is ongoing. In fact, it’s almost complete. And then we’ll have a substitute definition sometime in 2018, and that definition will hew to the case law and the text and I believe the intent and purpose of the Clean Water Act with respect to what a water of the United States is going forward.”
The Environmental Protection Agency is looking to delay the start date for the Obama administration’s Waters of the U.S. rule for two years, giving the agency and the Army Corps of Engineers more time to reconsider a key definition that is at the heart of litigation opposing the regulation. “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,’” said EPA Administrator Scott Pruitt.
When President Trump entered the office earlier this year, regulatory burdens was a top concern for U.S. producers. His 2-for-1 regulatory rollback (eliminating two regulations for every one proposed) he announced early on in his term and actions on top-of-mind concerns such as WOTUS are getting high marks. In our August survey, 86% of those who responded said Trump’s actions to reduce regulation are good for their farm. And it appears the administration isn’t slowing down.