Clearing the federal Clean Water Act of red tape

Business leaders and lawmakers last week voiced strong support for a proposed revision to the Clean Water Act to remove jurisdictional confusion and federal reach over small bodies of water in the states.   

The new rules are a victory for farming, manufacturing, mining and other industries that have been fighting to remove current wording in the Act that they say is unclear and places excessive federal regulation on different types of water including temporary standing water like ditches and ponds.   

“The current rule classified every dry wash in Arizona as jurisdictional under the Army Corps of Engineers and subject to permitting,” said Stefanie Smallhouse, president of the Arizona Farm Bureau that advocates for the state’s $23.3 billion agricultural industry. “It’s very unclear as to which areas are actually jurisdictional, and whether normal farming and ranching activities would now require permits, which can take up to two years to obtain.”

While the current rules are ambiguous, the penalties are harsh and threaten the farm industry, she said.  

“I want a clean water rule that I don’t need to hire an attorney to understand,” said Smallhouse, a fifth-generation rancher in southern Arizona.”

The new proposed definition for different types of waters, called the “Waters of the United States” or WOTUS, was released last week by the U.S. Environmental Protection Agency and the Army Corps of Engineers. The proposed rule provides clarity, predictability and consistency so that the regulated community can easily understand where the Clean Water Act applies, EPA Acting Administrator Andrew Wheeler said in a statement last week.

“Our proposal would replace the Obama EPA’s 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners the certainty they need to manage their natural resources and grow local economies,” Wheeler states. “For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.”

Under the agencies’ proposal, federal jurisdiction will remain over traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters.

Waters that are not under federal regulation in the revised rule are features that only contain water during or in response to rainfall and other “ephemeral” features, groundwater, many ditches, including most roadside or farm ditches, prior converted cropland, stormwater control features, and waste treatment systems.

“This new rule is good news for businesses, farmers, and localities because it strikes a better balance between economic growth and environmental progress than the rule it replaces,” said Karen Harbert, President and CEO of the U.S. Chamber’s Global Energy Institute, whose mission is to unify policymakers, regulators, business leaders, and the American public behind sound energy strategy to keep America secure, prosperous, and clean.  

The U.S. Chamber, which represents the interests of more than 3 million businesses, has played a leading role in advocating for a reasonable standard to measure federal jurisdiction under the Act.

“The previous rule gave EPA and the Army Corps unprecedented authority to permit and enforce areas well beyond what Congress intended,” Harbert said. “This revised rule will end a great deal of uncertainty that came in the wake of the former rule, and it will provide much-needed clarity.”

Controversy over the matter started in 2015 when the federal government expanded the definition of WOTUS. The legality of the definition has been mired in the courts ever since. Currently, WOTUS is temporarily blocked in 28 states. Four others are seeking temporary relief as the courts decide the matter.

“This inconsistent regulatory patchwork creates uncertainty and hinders projects that can benefit both the environment and the economy,” Wheeler states. “The proposed definition would establish national consistency and would rebalance the relationship between the federal government and states in managing land and water resources.”

Immediately after Wheeler’s announcement, cheers were heard from leading industry associations and groups including the National Association of Manufacturers, American Farm Bureau, National Pork Producers, National Corn Growers Association, Associated Builders and Contractors, American Petroleum Institute, and many more.

Numerous lawmakers including members of the Western Caucus applauded the action. Here are some of their comments.

Arizona U.S. Senator Jeff Flake: “I applaud the administration’s efforts to clarify and narrow the scope of the misguided Waters of the United States rule. The rewritten rule provides the consistency and predictability that landowners need and stops the flow of the federal government into every dry ditch in Arizona.”

Arizona U.S. Senator Jon Kyl: “I am pleased the EPA announced it will propose a change to the Clean Water Act’s WOTUS Rule, which has continuously subjected Arizona farmers and ranchers, as well as Arizona’s homebuilding industry, to federal overreach. A rule change would allow these industries to continue to operate without unnecessary restrictions.”

U.S. Sen. John Barrasso (WY), Chairman of the Senate Committee on Environment and Public Works: “Americans deserve clean water and clear rules. The Trump administration’s new proposal respects the authority Congress gave EPA and the Army Corps under the Clean Water Act. Regulations must follow the law and be easy for Americans to understand. This new proposal does that. The old WOTUS rule put Washington in control of ponds, puddles, and prairie potholes. The regulation was so confusing that property owners and businesses could not determine when permits were needed. Even worse, it inserted Washington into local decision making.”

Alaska Senator Dan Sullivan: “If a landowner or a farmer has to hire a lawyer for months of work against an impenetrable and glacial bureaucracy – at the cost of thousands of dollars – just to understand whether they can fill in a ditch or build a basic structure, it doesn’t take a genius to figure out that doesn’t work, especially in Alaska.”

Senator Chuck Grassley: “The Waters of the U.S. rule was an ill-conceived overreach. The rule and its drafting process were flawed from the beginning. It would have defined 97 percent of Iowa as a waterway, meaning that if implemented, family farmers and other small business owners would have had to get permission from Washington bureaucrats to move soil on dry land.”

The two federal agencies’ proposal is the second step in a two-step process to put the new WOTUS definition in place. Now, the proposal goes out for public and federal agencies review. Additionally, the EPA and Corps will hold an informational webcast on Jan. 10 and a listening session on the proposed rule in Kansas City, Kansas, Jan. 23.

Victoria Harker

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