Contact: Laura Campbell, Agricultural Ecology Department
The Environmental Protection Agency (EPA) and Army Corps of Engineers released their proposal to rescind the overreaching Waters of the U.S. (WOTUS) rule in June.
With the public comment period closed as of Sept. 27, it's expected the EPA will next lead a secondary rulemaking effort where EPA will engage in development of new language after a substantive re-evaluation of the definition of "Waters of the U.S."
This means more public comment opportunities, more potential lawsuits, and the need for farmers to stay engaged and make sure we make our voices heard.
The EPA's proposal to rescind the rule and President Trump's Executive order is the beginning of the end for a multi-year process that:
On January 13, the U.S. Supreme Court agreed to hear a petition filed by American Farm Bureau Federation and others over jurisdiction – whether the WOTUS rule should be reviewed by the U.S. 6th Circuit Court of Appeals where it currently sits, or by U.S. District Courts. As a result, the U.S. 6th Circuit Court announced on January 25 it will not issue a decision in the case until the Supreme Court decides whether it can do so. This will extend the stay the Circuit Court put on implementing the expansive Rule, which is good news for farmers who would be at risk of uncertainty and increased regulation of their farm fields and forest operations.
Senators Deb Fischer (R-NE) and Joni Ernst (R-IA) introduced a Resolution on January 12 calling on the EPA Administrator to vacate the WOTUS rule. Just as important, the Regulatory Accountability Act of 2017, introduced January 3, has passed the House and is moving to the Senate. This bill would reform the regulatory process by requiring agencies to more thoroughly consider concerns by the regulated community, to perform more complete economic impact studies of proposed rules, consult with other agencies and Congress before finalizing a rule, and other requirements to better protect the public from overly burdensome regulation.
This picture shows how WOTUS could be used to determine that runoff down a logging road can create a regulated “tributary” under the rule.
In November 2016 a brief was filed on behalf of nearly 60 petitioners including Michigan Farm Bureau, and lays out how EPA illegally pushed the WOTUS rule forward, and what burdens and uncertainty farmers will face under the new WOTUS rule:
The U.S. House of Representatives’ Committee on Oversight and Government Reform released the results of a two-year investigation in October 2016, detailing how EPA failed to follow the procedures of rulemaking when it developed the WOTUS rule, ignored fellow agencies’ concerns, cut short public comment, and let political goals and timelines drive the WOTUS rule’s development.
Current state law regulates lakes and wetlands over five acres, rivers and streams with definite bed, banks, and high water mark, and waters within 500 feet of a regulated lake or stream. This rule expands regulated waters in two ways:
Click here for our complete summary of what is regulated and what is not regulated within the final EPA Waters of the U.S. rule.