The Trump administration is expected to soon release a new "waters of the U.S." rule redefining what streams and wetlands are regulated by the Clean Water Act, and some observers think an announcement could come this weekend when President Donald Trump speaks at the American Farm Bureau Federation's annual convention.
“That’s a pretty good bet. It looks like the timing is right,” said Scott Yager, chief environmental counsel at the National Cattlemen’s Beef Association.
“I’m sure he’s going to want to say something” about WOTUS, said Don Parrish, senior director for regulatory relations at AFBF, which has probably been the most vocal of the trade groups in its criticism of the Obama administration’s 2015 Clean Water rule, widely known as WOTUS. The Obama rule, which expanded federal jurisdiction, was formally repealed last year and would be replaced by the new version.
Trump is scheduled to speak to AFBF on Sunday, followed by EPA Administrator Andrew Wheeler on Monday.
Yager, Parrish and other interested parties contacted by Agri-Pulse said any predictions about what Trump might say are just educated guesses. The same goes for what changes will be made from the proposed rule, which would remove ephemeral streams from federal jurisdiction, along with ditches unless they meet certain flow criteria.
“They’re keeping a tight lid on it,” Yager said, which he added is a good thing for supporters of the administration’s rule replacing the 2015 Obama rule.
That is because any potential violations of the administrative process, such as giving industry details in advance, could create legal problems for those trying to defend the rule. Keeping specifics close to the vest “is a good thing for the durability of the replacement rule,” Yager said.
The Office of Management and Budget has been reviewing the final rule, developed by the EPA and Army Corps of Engineers, since early December and has been holding a series of meetings with industry and environmental groups to get feedback.
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On Wednesday, for example, representatives of the American Petroleum Institute and American Forest & Paper Association were scheduled to meet with OMB. The last two meetings, on Jan. 28 and Feb. 6, are with the Edison Electric Institute and the American Chemistry Council.
Jon Devine, an attorney who heads up the Natural Resources Defense Council’s clean water solutions team, said the OMB meeting he attended did not shed any light on the details of the final rule.
In an email, however, he said, “I also have seen no indication that the administration intends to change course from abandoning decades-old protections for water bodies. In fact, when news broke of the [EPA] Science Advisory Board’s draft letters criticizing the agency’s disregard for science in this and other actions, an EPA spokesperson tried to deflect by suggesting the SAB might change its draft recommendations, not that the agency might change its rule to respect and reflect the huge record of scientific evidence supporting strong Clean Water Act protections.”
The advisory board criticized the proposed rule, saying it “neglects established science pertaining specifically to the connectivity of groundwater to wetlands and adjacent major bodies of water.” In addition, it is “not fully consistent with established EPA recognized science, may not fully meet the key objectives of the CWA – ‘to restore and maintain the chemical, physical and biological integrity of the nation’s waters,’ and is subject to a lack of clarity for implementation.”
Parrish said AFBF was supportive of the proposed rule but also would like to see more clarity, particularly in how the federal government defines intermittent streams. In its comments, AFBF suggested intermittent streams, which flow seasonally, should do so continuously for at least 90 days a year.
The proposal defines intermittent waters as “surface water flowing continuously during certain times of a typical year, not merely in direct response to precipitation, but when the groundwater table is elevated, for example, or when snowpack melts.”
Yager said NCBA wants the rule to be clear enough that, as EPA Administrator Andrew Wheeler has promised, a farmer or rancher would be able to determine jurisdiction through a “visual ID.”
“We want to put some power back in the hands of landowners,” Yager said.
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