Members of the U.S. Senate Environment and Public Works Committee obliquely debated each other Wednesday morning in a hearing regarding the impacts of the Waters of the United States rule — or Clean Water Rule — on the country’s agricultural operations and environment.
The 2015 Obama administration rule is in effect in some states but not in others, as federal court rulings coast-to-coast result in different outcomes. The state of Georgia is party to a lawsuit that currently resides in the federal court in Brunswick. U.S. District Judge Lisa Godbey Wood issued an injunction against enforcement of the regulations a year ago this month — the injunction includes Georgia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah, West Virginia and Wisconsin, though Wisconsin withdrew as a plaintiff May 2.
“Previous definitions have inappropriately and illegally expanded Washington’s control over water features all across the country,” U.S. Sen. John Barrasso, R-Wy., and chairman of the committee, said in his opening remarks. “You can look no further than the Obama administration’s illegal so-called Clean Water Rule. In 2017 the committee held a hearing on the legal, scientific and technical basis for the rule.
‘We heard how the U.S. Army Corps of Engineers was cut out of the rulemaking process. Maj. Gen. John Peabody, who was leader at the Corps during the Clean Water Rule’s development, testified to this committee that the Clean Water Rule was not based on the Corps’ expertise and experience.”
U.S. Sen. Tom Carper, D-Del., and the committee’s ranking member, said in Delaware they’ve proven it’s possible to protect the environment and support agriculture, but that it’s hard to trust the Trump administration on its new WOTUS rule considering everything it’s done negatively impacting farmers.
“This administration’s surrender on climate change ensures that more devastating floods, worsening droughts and fires the size of states, like my state, will continue to keep farmers and crops off their fields,” Carper said. “Add to … the erratic tariffs and climate denial, … our administration’s confusing renewable fuels gamesmanship, which is clearly intended to please everyone and sadly satisfies no one.
“This is not the way to do business, and so I ask a simple question — why should anyone trust the changes that this administration proposes to the definitions of waters of the U.S. are going to deliver for our agricultural producers?”
A lot of talk on the WOTUS rule involves ephemeral and intermittent streams. The new rule would eliminate federal protections for ephemeral streams, which are rain-dependent and in which runoff is the primary source of flow. A 2017 slideshow created for the Environmental Protection Agency and the Corps listed 18 percent of streams in the United States are ephemeral, and 52 percent are intermittent. Those waterbody types constitute the vast majority of streams in the arid Southwest.
In response to a question asked by U.S. Sen. Joni Ernst, R-Iowa, North Dakota Agriculture Commissioner Doug Goehring said “many municipalities and states which have authority over the waters of the state already, are going to make sure they adhere to the Clean Water Act and that water is appropriated, allocated, served and retained properly.”
Todd Fornstrom, president of the Wyoming Farm Bureau Federation said the people he represents want a 90-day minimum for continual flow for a stream to be classified as intermittent. As it stands, intermittent streams are understood to flow seasonally.
In regard to state laws, Carper noted some states have laws mandating they cannot pass regulations stricter than those of the federal government, and U.S. Sen. Chris Van Hollen, D-Md., talked about multi-state impacts.
“Six states have their waters flowing into the Chesapeake Bay, plus the District of Columbia,” Van Hollen said. “So, it’s easy to say one state or another is going to pass their own state laws to protect their waters, but when their waters are impacting people in another state, I can tell you that there’s not as much focus on the need to do that. That’s exactly why we have a federal Clean Water Act and that’s why we’re so worried in Maryland about the impact of this law.
“Our governor, who happens to be a Republican governor, and his head of the Maryland Department of the Environment, have expressed grave concerns over the impact that these new proposals will have on the Chesapeake Bay and the Chesapeake Bay watershed.”
In regard to the ongoing lawsuits, Goehring told U.S. Sen. Kevin Cramer, R-N.D., that it’s important for the cases to continue during the rulemaking process.
“I believe there are 26 states that have some sort of stay, but it’s all founded on different issues that have been brought forward within the courts,” Goehring said. “We need a final rule so that we can operate with some certainty.”
Cramer also asked Goehring about the water quality in North Dakota during the past three years the 2015 WOTUS rule hasn’t been in effect in that state.
“Actually, that’s what’s been confusing to me in all this discussion, is the Clean Water Act is in place,” Goehring said. “States have to adhere to it. Whether you choose to have more-stringent laws and regulations in place is up to your state, but you still have to work within the confines of the Clean Water Act. Whether the federal government has it or not isn’t going to mean whether you have any cleaner water, what it does mean is how do you mitigate and manage those resources, and that’s really what it’s about.”
Some discussions of WOTUS, like this one, however, miss key points. Halting enforcement of the 2015 WOTUS rule, for instance, leaves in place pre-2015 regulations. What the Trump administration proposes is a significant rollback of regulations that takes away protections that have in some cases been on the books for more than 30 years.
Also, WOTUS defines where the Clean Water Act applies. If enacted, as mentioned before the new WOTUS regulations would eliminate Clean Water Act protections for ephemeral streams altogether, and likely take them away from half of all wetlands as well.
The Clean Water Act is available for reading at govinfo.gov/content/pkg/USCODE-2010-title33/pdf/USCODE-2010-title33-chap26.pdf. The 2015 WOTUS rule is available at federalregister.gov/documents/2015/06/29/2015-13435/clean-water-rule-definition-of-waters-of-the-united-states.
The Trump administration’s new WOTUS rule is available at federalregister.gov/documents/2019/02/07/2019-01483/revised-definition-of-waters-of-the-united-states.
The Senate hearing ran around two hours — those who wish to watch it can go to epw.senate.gov/public/index.cfm/hearings?ID=08604F20-C3B3-4F98-BB3F-C3D417A9F726.