Ag Policy Blog

Race to WOTUS Finish Line

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The race is definitely on to see who will be the first to cross the finish line on the waters of the United States rule -- Congress or the U.S. Environmental Protection Agency.

EPA Administrator indicated earlier this week the so-called WOTUS rule sent to the Office of Budget and Management would be finalized this year, telling a group at the National Water Policy Forum, Fly-In and Expo in Washington, D.C., "We are going to get it over the finish line." McCarthy added, "The final rule will provide the clarity you have asked us to (provide). We will nail it."

McCarthy went on to say "we are not overextending ourselves into agriculture." A claim directly disputed by numerous agriculture and land interest groups, two of which lauded the passage of a bill on Wednesday in the House Transportation and Infrastructure Committee that would put an end to the WOTUS rule and require the agency to start over.

The bill was first introduced Monday by committee Chairman Bill Shuster, R-Pa., and Rep. Bob Gibbs, R-Ohio, the committee's Water Resources and Environment Subcommittee chairman, and is on a fast track to a full vote in the House.

The National Cattlemen's Beef Association and the Public Lands Council applauded the bill Wednesday, saying in a news release it sends "a clear message to the Environmental Protection Agency and the Army Corps of Engineers that the proposed waters of the U.S. rule is an expansion of federal jurisdiction that strips rights from private property owners."

The Regulatory Integrity Protection Act of 2015 would require the federal agencies to withdraw the WOTUS rule within 30 days. McCarthy has offered no indication the agency intends to withdraw.

NCBA President Philip Ellis said in a news release Wednesday the rule has not clarified which waters fall in Clean Water Act jurisdiction.

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"The subjective and ambiguous language of the proposed rule would significantly broaden the federal government's power to regulate waters and adjacent lands that convey water," he said. "We also appreciate the legislation requiring the federal government to work with state and local governments, further protecting states' rights."

One of the more common complaints levied at EPA by federal lawmakers and stakeholders across the country covering a wide swath of industries and backgrounds, is the agency has not fully considered many of the concerns brought to light on the rule.

Brenda Richards, president of the Public Lands Council and an Idaho rancher, said in a news release statement that the rule continues to be "nothing more than regulatory land grab.

"...Instead of proactively reaching out to stakeholders before proposing the rule, the administration pushed forward a rule that didn't take into account the concerns of agriculture."

The bill that passed through committee on a 36-22 vote would do a number of things.

According to a news release from the committee, the act would "uphold the integrity of the federal-state partnership to regulate the nation's waters by preserving existing rights and responsibilities with respect to 'waters of the United States' under the Clean Water Act."

The bill would force EPA and the Corps of Engineers to offer a new rule.

"When developing the new proposed rule the agencies must take into consideration all of the comments received on the rule, the economic analysis of the rule, and the connectivity study which was used as the basis for the rule," the news release said.

"They must also solicit recommendations from and consult with state and local officials, stakeholders, and other interested parties on how to define 'waters of the United States' and prepare a new regulatory proposal that is consistent with the Clean Water Act, Supreme Court rulings, the feedback from the public comments, and recommendations from the state and local officials, stakeholders, and others."

In an ongoing public campaign to generate support for the rule, EPA has touted its outreach efforts. However, not a single federal public hearing has been held in farm country since the rule was proposed. McCarthy spent a couple of days in Missouri -- one day to visit a farm and another as a keynote speaker at an agriculture business luncheon in Kansas City, Missouri. Members of Congress have since conducted a variety of field hearings, aimed at giving stakeholders a chance to voice their concerns.

The bill would require the agencies to engage in outreach to stakeholders, including holding a "federalism consultation" with the states and local governments.

"The agencies are instructed to seek to reach consensus with the states and local governments on defining 'waters of the United States,' maintain the federal-state partnership in implementing the Clean Water Act, and take into consideration state and local input regarding geography, hydrology, and legal frameworks," according to the committee news release.

In addition, the agencies would be required to solicit recommendations from stakeholders representing a "broad range of perspectives" on who could be affected directly or indirectly by a rule.

"The agencies are to promote transparency in these processes by making all of the communications, records, and documents available to the public, and prepare a report that responds to the comments received and provides a detailed explanation of how the agencies have used the comments and stakeholder processes in the new rule," the committee news release said.

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