Democrats, Republicans and witnesses at a Senate hearing today all agreed on the need for clean water, but disagreed on whether the Trump administration’s proposed WOTUS rule is the best way to get it.
Two of the witnesses, North Dakota Ag Commissioner Doug Goehring and Wyoming producer Todd Fornstrom, president of the Wyoming Farm Bureau Federation, both said they support the proposed rule, which would reduce the scope of the federal government’s jurisdiction over “waters of the U.S.,” or WOTUS. The remaining witness, Pima County, Arizona, Supervisor Richard Elias, said ceding more authority over water to the states would be problematic because two-thirds of them have laws prohibiting state regulations from being more stringent than the Clean Water Act.
Goehring and Fornstrom said the proposed rule, which has drawn thousands of comments, is a good start, but more clarity is needed.
In particular, Fornstrom said the Environmental Protection Agency and Army Corps of Engineers should specify that in order for a stream to be defined as “intermittent,” it must have “a minimum duration of continuous surface flow — for example, 90 days.”
Under the proposal, tributaries of navigable waters would be jurisdictional if they contribute perennial or intermittent flow to those waters. The proposal also asked for comment on whether intermittent streams should even be regulated. Ephemeral streams, which contain water in response to precipitation, are already out under the proposal.
Fornstrom, who testified on behalf of the American Farm Bureau Federation, also said ditches should no longer be a standalone category of waters under the Clean Water Act. AFBF does not want to see a category of jurisdictional ditches because that “may create the misimpression that the default status of ditches is that they are jurisdictional.”
“Ditches is one of those issues we need to overcome,” said Sen. Jon Ernst, R-Iowa.
Goehring said he agrees with the agencies’ plan to exclude most ditches and artificial channels from federal jurisdiction, but “to the extent the agencies intend to assert jurisdiction over ditches that are constructed in tributaries, they should revise the ‘tributary’ definition to clarify that the definition encompasses artificially created tributaries.”
Goehring and Fornstrom pushed back against the argument that states will not fill gaps in authority left by the administration’s new regulations, should they be finalized.
“States have intimate knowledge of their available resources, the needs of their people and industries, and are much better equipped to understand the specific and unique needs that do not fit a one-size-fits-all federal regulatory scheme,” Goehring said.
He also said the agencies need to be clearer about how they define “perennial” and “intermittent” streams, suggesting they use physical indicators, not just flow regimes, in the definitions.
“On a personal level, I am deeply protective of water quality because I raised my family drinking from a well on our farm,” Fornstrom said, adding “the way that we farm now is way better than it used to be.”
Senators were just as divided as the witnesses. Kevin Cramer, R-N.D., led the charge for Republicans, criticizing the notion that states need the federal government as the primary regulator of waters and wetlands.
“The federal government is not the only protector of water in the country,” he said.
On the other side of the dais, Democrats said they were worried the EPA/Corps proposal goes too far in reducing federal jurisdiction.
“Under the Trump proposal, in those waters no longer defined as waters of the U.S., industries would be free to discharge pollutants as they see fit, and land developers will be able to dredge and fill upstream wetlands,” committee ranking member Tom Carper, D-Del., said. “I wonder how farmers in Delaware would feel about having to install water treatment facilities to ensure they have the clean water they need to raise healthy crops and livestock.”
Because of court decisions, the Obama administration’s 2015 WOTUS rule is in effect in 22 states but has been blocked in the remaining 28, according to the EPA. That type of patchwork could remain or take on a new pattern depending on the outcome of litigation following the publication of the Trump administration’s rule.
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