As the battle continues to determine federal jurisdiction under the Clean Water Act (CWA), the U.S. Senate Environment and Public Works Committee has taken action to derail the Environmental Protection Agency’s (EPA) final rule on “Waters of the United States” (WOTUS).
After months of debate, thousands of comments from the forestry and ag community and clear direction from Congress and the courts, the EPA released its final rule on “Waters of the United States” on May 27 – officially defining waters that are subject to EPA’s regulatory jurisdiction. However, rather than providing more clarity on WOTUS, the final rule is riddled with caveats and exceptions that expand rather than reduce uncertainty.
In a statement on June 2, Dave Tenny, CEO of the National Alliance of Forest Owners, weighed in on the EPA’s passage of the rule and why it is important that Congress take action.
The agency says on the one hand that man-made ditches and rainwater control features put in place to meet CWA requirements are excluded as WOTUS, except when the agency determines they are not. The final rule categorically includes minor streambeds that are mostly dry as WOTUS, except when the agency says they are not. The complexity of the regulatory web is giving water lawyers all over town plenty to do as they try to discern agency intent, but it does little if anything to restore confidence to forest owners over their regulatory and legal exposure.
A principal shortcoming of the final rule was the process for producing it. Given the level of concern raised over the draft, the agency should have provided another opportunity for public comment to verify that the rule would actually meet the expectations the agency has raised these many months.
Instead, the EPA completed the final rule in a corner and must now try to explain all over again what it intended to do to an even more skeptical audience. Unfortunately, most of the explaining going forward will likely be through legal briefs and political talking points rather than constructive dialogue.
Forest owners continue to believe that there is a reasonable middle ground on WOTUS, but EPA’s final rule is not it. It is time for Members of Congress in both parties to intervene together and help provide the clarity and certainty EPA failed to achieve.
In response, Senate Environment and Public Works Committee recently passed the Federal Water Quality Protection Act, S. 1140, that would force EPA and the U.S. Army Corps of Engineers to scrap its interpretation and craft a new rule to align with Congress’ intent.
If passed, The EPA and Army Corps would be required to take into consideration the valid concerns of forest landowners, farmers, ranchers, home builders and others who would be affected by the new rule. The measure would require a comment period on the revised proposed rule of no fewer than 120 days and a final rule published no later than Dec. 31, 2016.
The U.S. House of Representatives passed similar legislation (Regulatory Integrity Protection Act of 2015, H.R. 1732) on May 12. However, the White House has threatened to veto the bill, arguing that it would “derail current efforts to clarify the scope of the CWA, hamstring future regulatory efforts and deny businesses and communities the regulatory certainty needed to invest in projects that rely on clean water.”
The legislation reaffirms the original intent of the CWA and provides clear direction with regard to the types of water bodies that would not fall under federal regulation under the CWA such as groundwater, natural and manmade isolated ponds, storm water and flood water management systems, constructed water systems, prior converted cropland, municipal and industrial water supply management systems, and puddles.
The Senate will weigh in on Federal Water Quality Protection Act (S. 1140) in the coming weeks. The Georgia Forestry Association will continue to monitor and report on the issue as it progresses. Visit the links below for more information: