WOTUS rule released, causes concern for ag

On May 27, U.S. Environmental Protection Agency (EPA) Administrator Gina McCarthy announced the released of the final waters of the U.S. rule, saying, “We love our rivers and need them to be clean, and the streams and wetlands that feed them need to be clean, too.”

She further noted that the Clean Water Act provides for clean waters across the U.S. and noted that the release of the waters of the U.S. rule was an important step in continuing to protect clean water across the country.

EPA adds, “The rule only protects the types of waters that historically have been covered under the Clean Water Act. The rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions. It does not regulate most ditches and does not regulate groundwater, shallow subsurface flows or tile drains. It does not make changes to current policies on irrigation or water transfers or apply to erosion in a field.”

“Today’s final rule provides clarity and predictability about which waters are covered by the Clean Water Act,” Jo Ellen Darcy, head of the Army Corps, told reporters on May 27. “Our rule makes it clear which waters are covered, and which are not.”

However, agriculture organizations across the country, including those in Wyoming, aren’t as confident that the rule is about protecting water – instead asserting that the final rule continues to appear to be a simple power grab.

In congress

Senator John Barrasso delivered remarks on the Senate floor about the Waters of the United States (WOTUS) rule on June 3, mentioning, “The Environmental Protection Agency released the final version of a new rule that will dramatically increase the agency’s power and will devastate Americans’ ability to use their own property and their own water.”

As a result, he, along with his counterparts in the Senate, have introduced a bill, the Federal Water Quality Protection Act (S. 1140). The bill would direct the EPA and Army Corps of Engineers to issue a revised WOTUS rule that protects traditional navigable water from water pollution, while also protecting farmers, ranchers and private landowners.

“They’ve written this rule so broadly – and with so much uncertainty – that it’s not clear if there are any limits on this agency’s power,” Barrasso added.

At the state level

Wyoming Farm Bureau (WyFB), the Wyoming Association of Conservation Districts (WACD) and the Wyoming Stock Growers Association (WSGA) also all expressed their concerns with the rule.

Brett Moline, WyFB government affairs and lobbying representative, commented, “We are very, very disappointed with the rule.”

“I think they have severely underestimated what will now be included into waters of the U.S.,” he continued. “At this point, it doesn’t look like there is a lot that changed between the draft and final rules. We, with AFBF, are working to continue to dissect the rule.”

Moline noted that the rule likely has far-reaching impacts that are still uncertain than ever.

WACD is also working to fully analyze the rule, and WACD Executive Director Bobbie Frank says, “It will take some doing to fully go through this rule, but there are some concerns with it.”

As one of many issues, Frank noted that the use of the 100-year flood plain as a basis of regulatory authority is concerning because of the extent of the reach of the flood plain.

“It doesn’t appear that EPA heard our concerns or listened to our comments,” Frank added. “I’ll be really taking the time to go through the rule and take a hard look at it.”

During the WSGA Summer Cattle industry Convention and Trade Show, Senator Barrasso’s staffer Travis McNiven reported, “This is as much about land control as it is about water.”

“There are several ways this final rule is worse than the proposed rule,” he said, noting that the definitions of tributaries, significant nexus and definitions of flow.

Going forward

After the final rule is published, Moline noted that it will go into effect 60 days from when it was published.

“Right now, we are pretty apprehensive about just how bad it will be,” Moline said.

Frank noted that the best recourse, at this point, is to support a national legislative effort, particularly the efforts of Senator Barrasso with his bill.

“There will also be lots of conversations about potential legal action,” Frank commented. “We haven’t had any discussions yet, but they will be coming.”

“The states are capable of doing their own work to protect waters,” Frank continued. “Waters aren’t going unprotected without this rule.”

National perspectives

The American Farm Bureau Federation (AFBF), National Cattlemen’s Beef Association (NCBA) and the Public Lands Council (PLC) have all spoken out against the waters of the U.S. (WOTUS) rule, noting that there are still significant problems with the effort.

“We are undertaking a thorough analysis of the final WOTUS rule to determine whether the Environmental Protection Agency listened to the substantive comments farmers and ranchers submitted during the comment period,” said Bob Stallman, president of AFBF. “Based on EPA’s aggressive advocacy campaign in support of its original proposed rule – and the agency’s numerous misstatements about the content and impact of that proposal – we find little comfort in the agency’s assurances that our concerns have been addressed in any meaningful way.”

Stallman noted that the process developing the recent rule is flawed and surpassed the legal boundaries of the agency set by congress and the court system.

“We know that farmers and ranchers were dedicated to calling for substantial changes to the rule,” he said.

NCBA took a firm stance against the rule in their press release, also noting that they will continue to review the rule. They agree with AFBF saying that the rule-making process was flawed and the final rule poses an “unnecessary threat to private property owners and cattle producers across the country.”

NCBA commented, “Under the guise of clarifying the Clean Water Act, the EPA and the Army Corps added ambiguous language to the law that leaves regulation up to the subjectivity of individual regulators across the country.”

Philip Ellis, NCBA president, commented, “The former Obama campaign officials that received political appointments at EPA are apparently putting their activist knowledge base to use. Soliciting endorsements and support is a far cry from simply educating the public, as EPA officials claim.”

Brenda Richards, PLC president, added, “The EPA has been spending taxpayer dollars employing a grassroots lobbying campaign, hiding information, dismissing concerns from stakeholders, and holding closed-door meetings with environmental activists.”

She continued, “There is no question that this rule will infringe on private property rights and usurp state authority over land and water use. Ambiguous language included will only serve to further jam courtrooms across the country with jurisdictional challenges.”

Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at saige@wylr.net.