‘Middle Ground’ on WOTUS elusive if not impossible | 2021-10-05

EPA Administrator Michael Regan has repeatedly stated that he wants to develop a “sustainable” definition of “United States waters” in the Clean Water Act – a definition based on Supreme Court case law. and contributions from various stakeholders.

The objective is to obtain a rule that could survive several administrations and the inevitable legal challenges. But it will be difficult, if not impossible, to find a definition that can satisfy all parties in the ongoing debate.

“That’s the million dollar question,” said Ryan Yates, general manager of public policy at the American Farm Bureau Federation, when asked if a definition could be written that could be accepted by farmers. , environmentalists and federal agencies themselves.

“I can’t really tell you a happy medium that might even have the potential to have support among different interest groups,” said Stephen Samuels, retired Justice Department Clean Water Act lawyer.

“Everyone has their own agenda,” he says. “And if you do something to make one of these groups a little happier, you make all the other groups less happy.”

The dividing line has been pretty clear from the start of the last round of rewriting. Environmentalists were, for the most part, happy with the Obama administration’s 2015 Clean Water Rule (aka “WOTUS”) while industry groups, including most farm organizations, preferred the Obama Administration’s Navigable Waters Protection Rule (NWPR). the Trump administration.

“We’ve learned from both, we’ve seen complexities in both, and we’ve determined that the two rules don’t necessarily listen to the will of the people,” Regan told House owners in April.

The 2015 Obama rule was overturned by courts covering about half of the nation’s states. The NWPR was struck down nationally by a federal judge in Arizona. Even before that decision, however, the EPA and the Corps said the NWPR “was leading to significant environmental degradation,” Regan said in June.

The hope of all involved in the process is that the next attempt at regulation will result in a solution that will stand the test of time. Ideally, Congress would rewrite the ambiguous law, which seeks to “restore and maintain the chemical, physical and biological integrity of the nation’s waters,” but given the difficulty of getting Democrats to agree on the issue, chances of this happening are slim if not nonexistent.

The law emphasizes the protection of “navigable waters” but then defines this as “United States waters, including territorial seas”, but without further explanation, which has led to decades of confusion over the extent of government jurisdiction.

For Scott Yager, chief environmental adviser at the National Cattlemen’s Beef Association, a “lasting” rule means a rule that can survive Supreme Court scrutiny.

“They will need to be very thoughtful, insightful, collaborative and inclusive in the process,” Yager said of the EPA and the Army Corps of Engineers, who have joint jurisdiction over the CWA Section 404 program. “Because we know this issue is so politicized, one wrong move and it’s going to capsize.”

Regan has repeatedly stressed that he wants input from farmers, and the agency said it will be holding regional roundtables this winter on the WOTUS rewrite.

“Can a compromise be found? I don’t know,” Yates said. “I don’t know what it looks like.” He said he couldn’t comment in detail until the EPA and the Corps released a proposal, but said: “We thought [the NWPR] was a very good rule of compromise. “

The agricultural sector and the US industry in general have embraced the idea that “seaworthiness” should be central to any definition of WOTUS. That’s why they liked the Trump administration’s Navigable Waters Protection Rule and its emphasis on navigability in defining the scope of regulated waters. The NWPR also removed the protection of ephemeral streams – those that flow only as a result of snowmelt or precipitation – and regulated intermittent streams only if they contributed to water flow. navigable.

“The Navigable Waters Protection Rule is a rule that many of these groups wanted,” said Jim Murphy, director of legal advocacy for the National Wildlife Federation. “And they feel, whether genuine or not, that the Clean Water Act is interfering with their ability to do business.”

Murphy, however, points to exemptions already in the law for “normal farming” activities such as plowing, seeding and cultivation, and hopes some members of the farming community will think that strong protections from the Clean Water Act are needed, especially with floods and droughts caused by climate change which “will only get worse”.

Asked about AG’s opposition to ephemeral stream protections, Yager said farmers and ranchers “want to preserve the aquatic features and use them,” but they also don’t want these features to prevent them from dying. ” make the necessary improvements to their operations.

He said he was concerned that the EPA and the Corps “would justify all this” repeal and replacement “of the Trump rule based on the arid Southwest and a number of negative court rulings from Arizona and New Brunswick. -Mexico”.

This suggests to him that the EPA and the Corps want to regulate ephemeral features. “If that’s the case, we’re going back to 2015 right away,” he said. “And we are going to fight the exact same battle. “

It was an Arizona federal judge who struck down the NWPR, citing the risk of “serious damage to the environment”, especially in the dry southwestern states.

Yager would like to see the EPA conduct a “meeting of minds” with farm officials to find a deal that both sides can live with.

The EPA is also expected to meet with environmentalists, he said, but added that he believes “environmental groups have the advantage of home base with the people who run the EPA right now.” .

Scott Yager, NCBA

Samuels doesn’t buy that. Citing his own experience with the EPA, he said: “They would bend over not to upset the farmers more than they would to upset the environmentalists.”

Samuels thinks there must be a broad effort to gather information from “people who are actually on the ground and who understand what’s going on with the flow of water – people who operate farms.”

Steve Moyer, vice president of government affairs at Trout Unlimited, agreed, saying it would be a “very good step” to bring together knowledgeable people from all sides of the problem.

Moyer also said he believed a compromise could be reached and that “there was a group of very good agency agents in place” who were keen to find a lasting solution.

Samuels, however, said: “I strongly believe in an attempt to get a proposal either for the making of ultimate rules or for legislation that has had support from the early days of the regulated community, as well as environmentalists,” he said, but added: “That’s pretty much wishful thinking, isn’t it?”

For more information, visit www.Agri-Pulse.com.

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