For farmers and ranchers living under the uncertainty of the 2015 Waters of the United States rule, this year could bring relief to an ongoing state of regulatory confusion. Currently, the Environmental Protection Agency and Army Corps of Engineers are reviewing over 600,000 public comments on a revised definition of WOTUS that aims to replace the detrimental 2015 rule. Agricultural producers and rural communities view the new water proposal as a marked improvement from the previous version, but more work is needed to eliminate ambiguity and draw pragmatic jurisdictional lines for landowners.
Leaders in Congress agree. Chairman John Barrasso (R-WY) and Ranking Member Tom Carper (D-DE) both expressed the need for clarity in the law. The question is, how do we get there?
First, it is important to remember that the Clean Water Act works in conjunction with state laws to protect our nation’s water resources. Federal oversight safeguards major rivers and tributaries while honoring the States’ authority to regulate smaller, upstream features. The 2015 WOTUS rule, however, initiated a complex web of federal control. Any waterbody or wetland within 4,000 feet of a “WOTUS” is swept under federal jurisdiction, even though many of these features are already subject to state protection. First and foremost, if the new rule is to be workable, it should avoid redundant regulations and explicitly recognize areas that should be regulated.
Three weeks ago, a federal court found that the 4,000-foot standard and other portions of the 2015 WOTUS rule violated the law, affirming the Trump Administration’s effort to repeal and replace it with the new water proposal. Now, the task before the EPA and Army Corps is to ensure that the new proposal provides the necessary clarity.
Developing a straightforward rule for our nation’s diverse landscape is, no doubt, challenging. Fortunately, at the state level, leading agricultural officials responsible for protecting natural resources and implementing regulations have some ideas.
In the recent Senate Environment and Public Works Committee hearing, Doug Goehring, National Association of State Departments of Agriculture Vice President and North Dakota’s Agriculture Commissioner, detailed solutions for improving the new water proposal. One of the most important recommendations focused on the need to add physical indicators, such as a river bed and banks, as a requirement for satisfying the definition of tributary in the new water rule. Only with understood landmarks can farmers and ranchers independently identify areas that should fall under WOTUS regulations, no matter where the operation is or what type of land it’s on.
When EPA Administrator Andrew Wheeler first laid out his vision for replacing the 2015 WOTUS rule, he laid out a key test for regulatory clarity. In his words, the “overarching goal for WOTUS is for the property owner to determine for themselves whether or not they have a Water of the United States.”
Close WOTUS watchers may find the physical indicators suggestion odd, given the agricultural community’s previous opposition to their use. As always, the devil is in the details.
In the 2015 WOTUS rule, physical indicators were used to determine jurisdiction in lieu of flowing water. Common sense suggests that any federal law concerning water regulation should consider when and where water flows. But under the 2015 WOTUS rule, physical indicators alone were enough to subject a landowner to federal oversight. Dry features that do not typically have water suddenly became the domain of Uncle Sam.
As it currently stands, the Trump Administration’s new water proposal presents the same problem flipped the other way – it requires water but not the existence of physical indicators. That makes it exceedingly difficult for landowners to determine whether a specific part of their property is inside or outside of federal jurisdiction.
Luckily, this can be fixed by updating the new definition of tributaries to incorporate physical indicators, such as a bed and banks. Both water flow and physical indicators should be necessary to determine the presence of a federal water. Only then, can we empower landowners to manage their property independently and avoid charging the EPA and Army Corps with regulating, in the words of Supreme Court Justice Kennedy, “the merest trickle.”
Agricultural producers and landowners appreciate the Trump Administration’s commitment to repealing and replacing the 2015 WOTUS rule. They share the goals of protecting our nation’s water resources and defining clear federal boundaries. Adding a physical indicator standard is necessary to achieve both goals.
Dr. Barb Glenn is the CEO of the National Association of State Departments of Agriculture. She has decades of experience as a policy researcher and is leading NASDA to forge new partnerships that result in sound food and agriculture policy between states, federal government, Congress and stakeholders.
Kendal Frazier is the Chief Executive Officer for the National Cattlemen’s Beef Association. Kendal was raised on a diversified livestock operation in southern Kansas and has extensive professional experience in agriculture and in the beef industry.