EPA asks states for input on new WOTUS rule

With the proposal to withdraw the Waters of the U.S. rule under review by the White House Office of Management and Budget, the U.S. Environmental Protection Agency is asking states to share with the agency what they think a new rule should look like.

EPA and the U.S. Army Corps of Engineers sent a letter to state governors on May 9 asking them for input on a new definition of protected waters that is in line with Supreme Court Justice Antonin Scalia’s opinion in the 2006 Rapanos v. United States case. Scalia’s definition explains that federal oversight should extend to “relatively permanent” waters and wetlands with a “continuous surface connection” to large rivers and streams.

Farmers and ranchers welcomed EPA’s outreach.

“This is an important first step towards the restoration of law in environmental regulation. A distant and unaccountable Washington bureaucracy has too often punished farmers and ranchers for alleged infringements that have no basis in law,” said American Farm Bureau Federation President Zippy Duvall. “We agree that this is the right way to proceed: Regulation must be done with an open door and open mind. We look forward to working with the states, the EPA and Army Corps of Engineers to set things right once more.”

EPA’s request for state feedback comes a few months after President Donald Trump issued an executive order to ditch the WOTUS rule. Duvall said Trump’s action was a “welcome relief to farmers and ranchers across the country.”

“The Environmental Protection Agency failed to listen to farmers’ and ranchers’ concerns when drafting the rule and instead created widespread confusion for agriculture. Under the rule, the smallest pond or ditch could be declared a federal waterway,” Duvall said in a statement regarding the WOTUS executive order.

“It’s a refreshing new openness on the part of U.S. EPA to receiving input from the states in the area of water quality regulation,” said AFBF general counsel Ellen Steen. “It reflects, we hope, a less top-down, heavy-handed approach from U.S. EPA.”

Farm Bureau supports EPA’s withdrawal of the 2015 rule and is urging the agency to replace it with one that conforms to the regulatory limits approved by Congress and affirmed by the Supreme Court.

“The agency, in being open to state influence, is showing that it may actually be willing to acknowledge there are some waters out there – there are some wet spots and low spots on your farmland – that ought not be regulated by the federal government and ought to be left for the states to protect,” Steen added. “And that in the long run, I think, is what we stand to gain.”