EPA withdraws interpretive rule, WOTUS still concerningWritten by Saige Albert
The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers will withdraw a portion of proposed rules expanding their Waters of the United States (WOTUS) regulatory authority. The withdrawn portion of WOTUS – the Interpretive Rule for Agriculture – removed normal farming exemptions.
In a Jan. 29 Memorandum, the EPA and U.S. Army Corp of Engineers said, “Effective immediately, the agencies hereby withdraw this interpretive rule as Congress directed in Section 112 of the Consolidated and Further Continuing Appropriation Act, 2015, Public Law 113-235.”
Governor Matt Mead worked for the withdrawal of this portion of the rule. He has also worked for the withdrawal of the remainder of the proposed rule.
“These rules were not developed in consultation with states. They have far-reaching impacts on agriculture, industry, private property and state control of water, and they need to be withdrawn,” Mead said. “I am pleased the agencies have begun the withdrawal process. I look forward to more.”
The EPA and Army Corps denied that the WOTUS proposed rules were aimed at expansion of federal authority, said Mead’s office in a press release.
The release continued, these proposals, however, increased federal oversight of agricultural practices, as well as controls over land and water resources under state authority.
Ag industry feedback
Bobbie Frank, executive director of the Wyoming Association of Conservation Districts, mentioned, “This withdrawal is good news for agriculture. Although the Interpretative Rule was touted as providing regulatory certainty and relief for producers, it actually required a producer to follow federal Natural Resources Conservation Service (NRCS) practice standards for over 50 practices, many of which are common place on Wyoming’s farms and ranches. This would have created even more regulatory requirements, not less.”
She continued, “The Clean Water Act already provides exemptions for normal farming and ranching. The rule would have provided exemptions for these but only if we followed federally-established practice standards.”
“Importantly for conservation districts, we were very concerned about the regulatory role this may have put our partners in the NRCS in – something we strongly oppose,” Frank added. “We are appreciative of Governor Mead’s strong stance on this issue.”
Wyoming Stock Growers Association Executive Vice President Jim Magagna added, “The withdrawal of the Interpretive Rule is important because it returns the exemption of normal agricultural practices from EPA permitting and removes NRCS from the inappropriate role of having to confirm compliance with their practices when no NRCS program is involved.”
However, the withdrawal of the interpretive rule does not affect the agency’s work to finalize their rulemaking to define the scope of the Clean Water Act.
Magagna said, “The unacceptable reach of the WOTUS rule remains in place as an infringement on state control of water and private property rights. We cannot rest until we achieve withdrawal of that rule.”
As a result, Congress continues to oversee the impacts of the WOTUS rule. On Feb. 4, EPA Administrator Gina McCarthy and Assistant Secretary of the Army Corp of Engineers Jo-Ellen Darcy testified in front of the U.S. Senate Committee on Environmental and Public Works, chaired by Senator Jim Inhofe (R-Okla.), and the U.S. House Committee on Transportation and Infrastructure, chaired by U.S. Representative Bill Shuster (R-Pa.).
The nearly five-hour hearing allowed Congress to explore the impacts of the proposed rule on state and local governments.
From the hearing
In opening statements, Shuster and Inhofe expressed their concern with the rule, as well as with how the rule was developed. They also looked toward the next steps that should be taken.
“The rule undermines the federal-state partnership under the Clean Water Act,” said Shuster.
He continued, “Our water quality has continued to improve over the last four decades, and Republicans, Democrats and people at the state and local level all care about water deeply. Many state and local governments are objecting to the erosion of the partnership and their authority.”
The WOTUS rule, Shuster added, does not consider the rights of states or the potential economic and legal impacts it has on agriculture and other stakeholders, including job creators and hardworking, middle class Americans.
Inhofe mentioned, “I have a number of the same concerns that many others do, but my concerns stem not only from the substance of the rule but from the thought process employed by the agencies in developing it.”
He expressed concern with the EPA’s continued attempts to expand their authority under the Clean Water Act.
“The Supreme Court drew the line and made it clear that all water is not subject to federal jurisdiction under the Clean Water Act,” Inhofe said. “This is an issue that has everyone’s attention.”
“It is clear after today’s testimony from the Obama Administration and state and local leaders that we need to ditch the proposed Waters of the U.S. rule,” Shuster and Inhofe said in a joint statement. “U.S. Environmental Protection Agency Administrator Gina McCarthy admitted the rule is flawed by repeatedly committing to fix the proposal when Members of Congress raised serious concerns about how it would impact their constituents, communities and local industries. She admitted that the proposed rule is inconsistent and ambiguous.”
While McCarthy also committed to make changes to ensure that isolated ponds, storm sewer systems, water reuse systems, roadside ditches, rock quarries, and farm activities all will be exempt in the rule and that each of the more than 1 million comments is reviewed.
Inhofe and Shuster said, “McCarthy also said any change to the rule would not be significant enough to warrant re-proposal and pledged today to plow ahead to issue a final rule by spring. The EPA cannot have it both ways. If the rule is flawed it should be withdrawn. Small changes will not be sufficient.”
They added, “We need to ensure that the Administration follows through on its word to make necessary and significant changes to the rule in response to the concerns of the states and local governments, and the more than 1 million comments filed by the public.”