The Waters of the United States (WOTUS) proposed rule will be the subject of 11 stakeholder telephone conference sessions beginning Sept. 19, 2017.
An Aug. 25, 2017 press release from EPA and the Army Corps of Engineers (Corps) announced weekly shareholder sessions to be held on WOTUS. More information can be obtained through [email protected].
The two agencies plan on holding 11 sessions to seek input on changing the definition of WOTUS. Each teleconference will be 2 hours long. EPA and the Corps will hold a stakeholder session every Tuesday afternoon from 1-3 pm EDT. You can register to attend each meeting by going to the EPA website and according to the press release “Registration for each webinar will close a week prior.” On October 17, 2017, there will be a webinar regarding agriculture. The dates and each industry are noted in the EPA press release.
High priority for President Trump
Remember, WOTUS has been a high priority for President Trump. In February, 2017, he signed an Executive Order “restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the Waters of the United States Rule.” President Trump called WOTUS one of the very worst examples of EPA federal regulatory overreach. EPA Administrator Scott Pruitt declares “We want to return to a regulatory partnership, rather than regulate by executive fiat.”
A commentator from the Heartland Institute declared “Unless you’re some EPA functionary intent on trying to expand the agency’s power as far as you possibly can, the fall of the WOTUS rule is fantastic news.”
The EPA and Corps “proposed rule” is the first step in reviewing and revising the definition of WOTUS. The proposed rule proposes to rescind the Obama-McCarthy regulation regulating waters in the United States. The EPA –Corps rule went into effect in 2015 and the effect of the rule was stayed on Oct. 9, 2016, by a U.S. Court of Appeals. The Trump Administration and Mr. Pruitt “…propose to replace the 2015 definition of Waters of the United States, and recodify the exact same regulatory text that existed prior to the 2015 rule, which reflects the current legal regime under which the agencies are operating…” (This new regime did not help in my representation in the Duarte Nursery matter in California.)
The key language the Trump Administration appears to favor is from the Rapanos v United States case where a four-justice plurality opinion written by the late Justice Antonin Scalia interpreted the term of what is a water of the United States. Justice Scalia described waters of the United States as being “relatively permanent, standing or continuously flowing bodies of water…, that are connected to traditional navigable waters…as well as wetlands with a ‘continuous surface connection’ to such water bodies.”
Justice Scalia went on to say that “relatively permanent waters did not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought, or seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months…”
This definition of WOTUS was not accepted by EPA; however, Justice Kennedy’s definition declaring that when a water possessed a “significant nexus” to waters they could fall under EPA or Corps jurisdiction. (In the Duarte case in California, the U.S. District Court said Duarte’s wheat land, including vernal pools, had a “significant nexus” to the Sacramento River.) A “significant nexus” test has given EPA unlimited authority to reach out and govern private property in the United States.
Needed: A new rule
The new proposed rule from EPA and the Corps will clearly rescind the 2015 WOTUS definition, and it is also clear the regulatory regime operated by EPA and the Corps existing prior to 2015 remains in place. The June EPA – Corps proposed rule cites the President’s Executive Order as directing EPA and the Corps “…to consider interpreting the term ‘navigable waters’ in a manner consistent with Justice Scalia’s plurality opinion…”
Agricultural organizations and individuals should be participating in EPA shareholder sessions on WOTUS beginning this week. I strongly suggest that members of the agriculture community participate on September 26, 2017 when environment and public advocacy groups will speak to EPA and on Oct. 3, 2017, when conservation, hunters and anglers participate with EPA and the Corps on their recommendations regarding WOTUS.
Your future and private property rights are hanging in the balance.
The opinions of the author are not necessarily those of Farm Futures or Farm Progress.