/ Articles / Obama-era Waters of the U.S. rule finally repealed

Obama-era Waters of the U.S. rule finally repealed

But lawsuits are coming from the Right and Left

November 12, 2019 by Richard Moore

The Trump administration has finally followed through on its promise to repeal the Obama administration’s controversial Waters of the U.S. rule, which dramatically expanded federal regulation of the nation’s waters, but the fight is a long way from over as lawsuits are now being filed from the Left and the Right.

The U.S. Environmental Protection Agency (EPA) announced last month it had finalized repeal of the 2015 rule, which the agency said impermissibly expanded the definition of “waters of the United States” (WOTUS) under the Clean Water Act.

The administration is now launching a second process to establish a new definition of WOTUS. In the meantime, the rule and definition that existed prior to the 2015 rule will be in place.

“Today, EPA and the Department of the Army finalized a rule to repeal the previous administration’s overreach in the federal regulation of U.S. waters and re-codify the longstanding and familiar regulatory text that previously existed,” EPA administrator Andrew Wheeler said in making the announcement. “Today’s Step 1 action fulfills a key promise of President Trump and sets the stage for Step 2 — a new WOTUS definition that will provide greater regulatory certainty for farmers, landowners, home builders, and developers nationwide.”

Opponents of the Obama rule, such as the American Farm Bureau Federation, had argued that the 2015 rule gave federal agencies virtually unlimited authority to regulate any low spot where rainwater collected, including common farm ditches, ephemeral drainages, agricultural ponds and isolated wetlands found in and near farms and ranches, no matter how small or seemingly unconnected they might be to true “navigable waters.”

“The 2015 rule defines terms such as ‘tributary’ and ‘adjacent’ in ways that make it impossible for farmers and ranchers to know whether the specific ditches, ephemeral drains or low areas on their land will be deemed ‘waters of the U.S,’” the federation stated. “But these definitions are broad enough to give regulators (and citizen plaintiffs) justification to assert that such areas are subject to Clean Water Act regulation and give the agencies sweeping new authority to regulate land use.”

As expected, lawsuits challenging the Trump administration’s repeal have already been filed by environmentalists. In South Carolina, the South Carolina Coastal Conservation League, Natural Resources Defense Council, National Wildlife Federation and others filed a lawsuit in the U.S. District Court for the District of South Carolina.

Among other things, the lawsuit challenged the process by which the repeal occurred.

“The manner in which the repeal has been carried out — in essence, by executive fiat — betrays an extraordinary disregard for federal rule-making requirements and the views of the American public,” the lawsuit states.

But a lawsuit has also been filed on behalf of the New Mexico Cattle Growers’ Association by the Pacific Legal Foundation, who supported the repeal of the Obama rule but is contesting the revival of the old rule while the administration works toward a new definition.

Their lawsuit points out that, while the 2015 rule was subjected to numerous lawsuits, and five federal courts found that the 2015 rule was illegal, the older rules are similarly unconstitutional.

“The old rules that EPA is using now have been ruled unconstitutional by the Supreme Court,” said PLF senior attorney Tony Francois. “While it is good that EPA is repealing the 2015 rule, the older rules the agency is now enforcing have many of the same legal defects. The problem here is that for decades, not just since 2015, EPA has sought to use its Clean Water Act authority over navigable lakes and rivers to regulate puddles and dry arroyos on private property all over the country. This is the trend that has to be turned back.”

The impact

While the Waters of the U.S. rule greatly impacts cattle ranches out west and farms across the country, how it is defined could have far-reaching consequences closer to home, such as in Wisconsin’s forests.

And that could impact the region’s critical forest products industry, according to Henry Schienebeck, the executive director of the Great Lakes Timber Professionals Association (GLTPA). Indeed, Schienebeck told The Lakeland Times this week, the Obama rule — which could return if court challenges to its repeal are successful — was far-reaching and unnecessary.

“If we are going to have good healthy sustainable forests, it all boils down to management,” Schienebeck said. “When some of that management is not done, we see forest health decline. We’ve got more invasive species in this country than we’ve ever had. A lot of it has been introduced from Europe and other places, but forest management really helps mitigate some of that.” 

But the Obama WOTUS rule and other regulations interfered with good management practices, Schienebeck said.

“When we started getting bombarded with more rules and regulations, one of the ones we were really concerned about was the Waters of the U.S. rule,” he said. “That was getting right down to where if you didn’t build your logging road right, that would have been a disaster to have to go up and get permits and everything to get in and use that forest road.”

In testimony before Congress, Schienebeck explained those potential impacts in greater detail.

“The GLTPA believes WOTUS is a far-reaching, unnecessary rule that provides no documented positive implication for water quality,” he testified. “However, because of its expanded territory it will undoubtedly add great expense to the cost of operation for farming and forestry.”

Schienebeck said it was hard to imagine a Wisconsin industry that was not impacted by surface water, and the forest products industry was the second most financially significant industry in Wisconsin after agriculture, creating almost 60,000 direct jobs and generating roughly $23 billion of economic activity annually. 

“Northern Wisconsin’s rural communities in particular are dependent on forestry for their social, economic, and ecological wellbeing,” he testified. “Due to the naturally wet landscape of Wisconsin, GLTPA is concerned that WOTUS could irreparably harm Wisconsin’s economy.”

What’s more, Schienebeck said, Wisconsin already leads the way in water quality standards associated with forests. In 2013, the Wisconsin Department of Natural Resources conducted an audit of 75 state and county timber sales and found that best management practices (BMPs) for water quality were correctly applied in 97% and 95% of the audited sites, respectively, he said. 

“As it stands, WOTUS seeks to improve water quality by greatly expanding EPA’s already broad authority, thereby reducing local water regulation and control,” Schienebeck said. “How could taking control away from the people already doing such an exceptional job improve water quality?”

Schienebeck said the EPA may question why the GLTPA is concerned about the rule since silviculture currently has an exemption under WOTUS, but he said he did not trust that exemption.

“In 2014, the National Resource Defense Council filed a lawsuit seeking to remove the exemption, claiming forest roads cause sediment-laden runoff into WOTUS,” he said. “Further, EPA itself stated in 2012 that it was looking at regulating forest road runoff. A silvicultural exemption without clear protection of forest roads would mean people could harvest timber, but have no way of removing it from the woods without the permission of the federal government. Since there is no evidence removing the exemption will improve water quality, does it make sense to add cost and confusion to an already efficient and effective process?”

Finally, Schienebeck said, the vagueness of the rule would have made it very difficult for anyone other than a federal or affiliated employee to make a determination as to what qualifies as a wetland. 

“Managers would fear being overruled and prosecuted for disturbance of a WOTUS,” he said. “This would potentially increase cost if a land manager needs to interact with the Corps or the EPA on every decision. For example, there are many old logging roads in the woods that new harvest operations could use with minimal improvement. Beavers will often build dams on these roads, which could create a wetland covered under WOTUS. So instead of using the existing logging road that could be improved without damaging water quality, the harvesting operators may have to build a complete new road.”

This would create an unnecessary cost to the landowner, either in the form of time to get permission from the federal government or costs related to new road construction, Schienebeck testified.

“Building a road through a 40-acre wooded plot costs a minimum of $1,200, not including finishes like gravel or culverts,” he said. “Not only is there more disruption to the environment, everyone from the landowner to the logger is making less money because of a rule that provides no measurable benefit in water quality. Is that progress?”

The old rule is the new rule

For now, pending litigation, that Obama-era rule is gone, and the old pre-2015 rule is the new rule.

Not every opponent of the 2015 rule was disappointed by the specter of working toward a new definition. While those who opposed the 2015 rule welcomed its repeal, some also understand that pre-2015 rules were problematic and they fear that if the repeal rule is challenged and falls in court, the courts could restore the 2015 rule.

Meanwhile, the National Cattlemen’s Beef Association praised the Trump administration and said it looked forward to the process ahead.

“Cattle producers are the nation’s original environmental stewards — we work hard to ensure that our natural resources remain pristine and to implement conservation practices to protect our water resources,” NCBA president Jennifer Houston said. “The 2015 WOTUS rule was an illegal effort by the federal government to assert control over both land and water, significantly impacting our ability to implement vital conservation practices. After years spent fighting the 2015 WOTUS rule in the halls of Congress, in the courts, and at the EPA, cattle producers will sleep a little easier tonight knowing that the nightmare is over.”

She said NCBA looked forward to the finalization of a practical Waters of the United States definition that would protect water resources while allowing cattle producers to do their jobs effectively.

The National Association of Counties also praised the administration’s efforts to withdraw the 2015 definition and replace it with previous regulations.

“The nation’s counties support clean water and common-sense environmental regulations,” NACO executive director Matthew Chase said. “We balance our environmental stewardship responsibilities with our duty to keep residents safe and foster economic competitiveness.”

Federal regulations have significant impacts on counties, sometimes overreaching and hindering the ability to fulfill mandated responsibilities, Chase said.

“We appreciate the administration’s efforts to clarify the ‘Waters of the U.S.’ definition,” he said. “Over the years, an unclear definition has resulted in confusion, inconsistencies and costs, inhibiting essential infrastructure upgrades and causing delays, unnecessary red tape and lawsuits. We look forward to continuing to work with the agencies to achieve a pragmatic rule that advances clean water goals without hindering counties’ vast public safety and infrastructure responsibilities.”

The repeal of the 2015 WOTUS rule is just the latest in a relatively quiet but aggressive campaign to reduce federal regulations by the administration. Under Trump, the administration has cut eight-and-a-half regulations for every new rule. The White House says Trump’s deregulatory efforts have already slashed regulatory costs by nearly $50 billion, with savings reaching $220 billion once major actions are fully implemented.

“We are now reducing the size, scope, and cost of federal regulations for the first time in decades, and we are already seeing the incredible results,” Trump said at a recent cabinet meeting.

Richard Moore is the author of the forthcoming “Storyfinding: From the Journey to the Story” and can be reached at richardmoorebooks.com.

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