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At Trump’s direction, U.S. reduces upstream reach of clean water law

The National Cotton Council said the new rule would protect environmental and human health while providing regulatory flexibility for agriculture.

Decrying what it called regulatory overreach, the Trump administration announced on Thursday that it will limit enforcement of clean water laws to oceans, rivers, core tributaries, and adjacent wetlands. Environmentalists said the move would leave half of U.S. wetlands and millions of miles of streams without protection from pollution. Farm groups applauded the new delineation of federal jurisdiction, which exempts prior converted farmland, most farm ditches, tile lines, and artificial ponds.

EPA Administrator Andrew Wheeler said the administration’s Navigable Waters Protection Rule (NWPR), the successor to the Obama-era Waters of the United States (WOTUS) rule, would bring a clear guideline to businesses, landowners, and farmers “to support the economy and accelerate critical infrastructure projects.” The rule will take effect 60 days after appearing in the Federal Register.

Farmers and real estate developers were among the most vocal opponents of the 2015 WOTUS rule. At the time, the American Farm Bureau Federation, the largest U.S. farm group, said WOTUS meant federal control over dry farm ditches, although EPA leaders insisted they would keep many longstanding agricultural exemptions in place. As a candidate, Donald Trump said WOTUS was unconstitutional, and in his first weeks in office, he started the government’s regulatory machinery running to eliminate it. WOTUS has been challenged in court since it was issued.

Farm Bureau President Zippy Duvall said the new rule “provides clarity and certainty, allowing farmers to understand water regulations without having to hire teams of consultants and lawyers.”

“Our rule takes a commonsense approach. This rule also eliminates federal overreach and strikes the proper balance between federal protection of our nation’s waters and state autonomy over their aquatic resources,” said Assistant Army Secretary R.D. James, who oversees the U.S. Army Corps of Engineers. The EPA and the Corps are responsible for water and wetland resources.

“The previous WOTUS rule was a dramatic government overreach and an unprecedented expansion of federal authority over private land,” said the National Pork Producers Council, by covering “upstream waters and intermittent and ephemeral streams [and] lands adjacent to waters such as farm fields.”

Just four categories of water will be subject to federal regulation under the NWPR: “territorial seas” and large rivers and lakes; perennial and intermittent tributaries that contribute water flow to navigable waters during a normal year; lakes, ponds, and impoundments of jurisdictional waters; and wetlands adjacent to jurisdictional waters.

Exempt from the NWPR will be groundwater, including water through tile lines and other subsurface drainage systems; ephemeral steams, swales, gullies, rills, and pools; many farm and roadside ditches; prior converted cropland; artificial lakes and ponds such as farm ponds, irrigation ponds, and livestock watering ponds; groundwater recharge structures; and irrigated areas.

The National Cotton Council said the new rule would protect environmental and human health while providing regulatory flexibility for agriculture. “This final rule removes many elements from federal control that were initiated in the previous administration,” said Council President Mike Tate, an Alabama cotton grower. “That includes features that contain water only in response to rainfall, groundwater, many farm and roadside ditches, prior converted cropland, and stock watering ponds.”

Said the American Soybean Association, “We have long rallied for a replacement rule that protects our waterways while still offering a workable solution for farmers and that does not impose undue burden on agriculture.”

“We have been functioning under a tangled patchwork of water regulation for far too long,” said Barbara Glenn, chief executive of the National Association of State Departments of Agriculture.

Not surprisingly, environmentalists had a different take. “The Trump administration has just given polluters a free pass to contaminate groundwater, destroy streams and wetlands, and put our water at risk,” said Sierra Club Executive Director Michael Brune. The environmental group said the NWPR “will strip Clean Water Act protections for more than half the nation’s wetlands and millions of miles of streams — numbers confirmed by the administration’s own analysis.”

Another environmental group, the Natural Resources Defense Council, said it would “do all we can to fight this attack on clean water.” The NRDC pointed to recent criticism of the rule by members of the EPA’s own Science Advisory Board, which described the plan as “simplistic” and contrary to established science.

The EPA overview of its Navigable Waters Protection Rule is available here.

The EPA fact sheet on rural impact is available here.

To read the 340-page final rule, click here.

Produced with FERN, non-profit reporting on food, agriculture, and environmental health.
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