Executive Order Initiates Review of WOTUS Rule

Taylor Hillman Water

Review of WOTUS Rule
President Trump’s executive order to review and revise a disputed Clean Water Act rule will bring “regulatory certainty,” the administration says—and agricultural groups said they were encouraged by the action.

At stake is a “waters of the United States,” or WOTUS, rule proposed by the U.S. Environmental Protection Agency and Army Corps of Engineers, which would expand the agencies’ authority to regulate water and land.

In comments to the American Farm Bureau Federation on the day the executive order was signed, new EPA Administrator Scott Pruitt said the WOTUS rule would have “transformed the authority, the jurisdiction, the power of the EPA in regulating water.”

“People across the country can rest assured that we are going to get that fixed,” Pruitt said.

At the environmental consulting firm Gallaway Enterprises in Chico, Butte County Farm Bureau member Jody Gallaway described the executive order as good news.

“The way the rule was proposed, it really broadened jurisdiction in areas that historically the government didn’t have jurisdiction on,” said Gallaway, who is the firm’s president and senior regulatory biologist.

California Farm Bureau Federation President Paul Wenger said Farm Bureau welcomed the executive order.

“Ultimately, the goal should be to provide farmers and ranchers—in California and elsewhere—the freedom to farm their land productively and with environmental certainty, while pursuing compliance with the Clean Water Act through incentives rather than coercion,” Wenger said.

“At the same time, we recognize the executive order as the first step in what could be a long process to undo the confusion brought by the WOTUS rule,” he said.

Gallaway said the rule made it “very difficult” for a landowner or layman to know what feature of a parcel of land could fall under federal jurisdiction.

“There was all kinds of new language that even made it difficult for me—a professional with over 20 years of experience,” Gallaway said. “I think it’s a good idea to roll it back and take this opportunity to put something together that works.”

Farm Bureau and other opponents say the Obama-era rule, first proposed in 2015, would greatly expand federal regulatory authority by increasing the number of waters that would fall under EPA or Corps jurisdiction—and expanding the lands surrounding those waters under the agencies’ jurisdiction through newly required setbacks.

At the time they proposed the rule, EPA and the Corps said it would help them determine what streams, wetlands, ponds and ditches would be subject to regulation under the Clean Water Act and clarify which waterways should be protected.

According to Gallaway, an important feature of Trump’s executive order is his request that EPA and the Corps consider interpreting the term “navigable waters” in a manner consistent with the opinion of the late Supreme Court Justice Antonin Scalia in a case known as Rapanos v. United States.

“This is key because Justice Scalia, in his decision, was saying it was never the intent of Congress to have non-navigable waters be under the jurisdiction of the Clean Water Act,” Gallaway said. “The fact that Trump is wanting to go back and craft a new rule using Scalia’s opinion is very encouraging.”

Previous enforcement of the act gave regulators a “broad spectrum of gray area” that allowed them to interpret their authority, Gallaway said.

“If we can eliminate the gray area, by default we can make these regulators much more accountable,” she said.

The Pacific Legal Foundation, which filed one of the legal challenges to the WOTUS rule, commended President Trump for “taking quick and decisive action on this controversial rule and restoring the balance of power between the government and its citizens.”

PLF attorney Reed Hopper said that as a result of the executive order, lawsuits challenging the rule would likely be dismissed. But he said “it is equally likely” a PLF case questioning the proper venue for bringing such a challenge would continue in the U.S. Supreme Court.

AFBF President Zippy Duvall called the executive order “a welcome relief,” while noting that the president’s action “is as much a beginning as an end.”

“There is much work to do to ensure that any revised rule is transparent and fair for America’s farmers and ranchers,” Duvall said.

CFBF Associate Counsel Kari Fisher said the process to review and revise the rule could be lengthy.

“Just like adopting the rule, they have to do exactly the same thing to withdraw the rule,” Fisher said.

Any revisions to the rule or a withdrawal of the rule would require a formal public notice and comment period.

Additional litigation could be filed if the rule is withdrawn, Fisher said.

Christine Souza is an assistant editor of Ag Alert. She may be contacted at Permission for use is granted by the California Farm Bureau Federation when reprinting this item.