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White House delays WOTUS effect by 2 years, to revise

WASHINGTON, D.C. — Some farmers will undoubtedly be pleased by what could be a death knell for the controversial Waters of the U.S. (WOTUS) rule viewed by opponents as too restrictive. The Trump administration on Jan. 31 moved back implementation of the rule, challenged heavily in courts, by two years.

The decision came nearly one year after Trump, citing the rights of private landowners being infringed upon, ordered the Obama-era WOTUS to be reviewed and revised. The latest delay gives the U.S. EPA and Army Corps of Engineers time to draft a replacement rule under the Clean Water Act.

“We look forward to the next steps: repeal and replace,” said Scott Yager, chief environmental counsel for the National Cattlemen’s Beef Assoc.

Dennis Nuxoll, vice president of federal government affairs for Western Growers, said the next rule should achieve the aims of the Clean Water Act while preserving the ability of farmers to stay in business.

“The producers of America’s safe and affordable food are our nation’s first and finest stewards of the land and its resources. Yet, the Obama-era clean water rule overextended the reach of the Clean Water Act,” he said. Western Growers represents growers of produce in Arizona, California, New Mexico and Colorado.

A federal appeals court in 2015 blocked WOTUS from going into effect, in response to a legal challenge from agriculture and other groups including the mining industry, along with dozens of state and municipal governments. But the Supreme Court last month ruled the appellate court had no authority to issue a nationwide stay of WOTUS, and overturned the decision.

That opened the door for the rule to go into effect until the Trump administration imposed the two-year delay on its implementation.

EPA under the old rule had authority over navigable waters and waters with a significant connection to navigable waters. WOTUS was amended to expand EPA authority to areas like streams and standing water in flood-prone areas, causing farmers to feel handcuffed on their rights as property owners and the ability to make a living.

Farmers also felt the new rule was not specific enough in defining proper land use and wanted more input in crafting the rule. Zippy Duvall, president of American Farm Bureau, said lack of clarity in the law would have placed farmers at risk of lawsuits and penalties from violations they didn’t know they were committing for activities “as common and harmless as plowing a field.”

“That rule would have put a stranglehold on ordinary farming and ranching by treating dry ditches, swales and low spots on farm fields just like flowing waters,” he said.

U.S. Sen. Joe Donnelly (D-Ind.) applauded the move toward revising WOTUS. “I encourage the administration to develop a rule that is more workable for Hoosiers. It is important that we get this rule right,” he said.

He also said he will strive to make sure all stakeholders, including farmers, are working together in crafting the new rule. The goal of EPA Administrator Scott Pruitt is to have a new, easier-to-understand rule drafted and on the table for discussion by the end of the year.

“The 2015 WOTUS rule developed by the Obama administration will not be applicable for the next two years while we work through the process of providing long-term regulatory certainty across all 50 states about what waters are subject to federal regulation,” he said.

The National Resources Defense Council said it will go to court to fight the two-year delay in the implementation of the new rule. “It’s grossly irresponsible and illegal,” said Jon Devine, senior attorney for NRDC.

NRDC charges that needed protections for streams that provide drinking water for one of every three Americans will be taken out of the existing rule and not be put back into a new version.