WOTUS could greatly affect farm country
A federal rule opposed by many Oklahoma farmers, ranchers and wildlife enthusiasts – which Attorney General Mike Hunter says “just doesn’t make sense” – is back on the books, thanks to a single federal judge in South Carolina.
It’s the infamous “Waters of the U.S.” regulation that Hun-ter’s predecessor, during a short stint as President Donald Trump’s administrator of the Environmental Protection Agency, had succeeded in delaying the enforcement of temporarily.
The WOTUS rule was implemented by former President Barack Obama’s administration in 2015 but targeted by Trump during the 2016 elections as something he would abolish or rewrite.
In February this year, former Oklahoma AG Scott Pruitt, whom Trump had appointed as his first administrator of the EPA, filed legal documents suspending the WOTUS rule for two years while a new one more favorable to farmers and ran-chers could be prepared by the current administration.
But last week, U.S. District Judge David Norton of South Carolina issued an injunction against delaying enforcement of the law in 26 states including Oklahoma.
Hunter was quick to react. “The idea that a mud puddle is going to be subject to federal regulation just doesn’t make sense,” he said.
He also joined an alliance of organizations filing a motion in the U.S. District Court for the Northern District of Oklahoma seeking an injunction against enforcement of the WOTUS rule while its legality is determined. A press release from the AG’s office said injunctions have already been granted in 24 other states. But it also said last week’s decision put the Obama rules back into force immediately in 26 states, including Oklahoma.
WOTUS gave the federal government authority to regulate virtually all land where water collects and all bodies of water across the United States, no matter how small or inconsequential. Before its adoption, the federal government’s jurisdiction was limited to interstate waters, or large bodies of water.
At the time it was being considered, Custer County commissioners were concerned about waters in bar ditches along county roads being subject to federal requirements. Now, it appears they can be concerned again.
Among other agencies concerned is the American Farm Bureau Federation. It says the 2015 rule, which is back in effect, “grants the federal government regulatory control over virtually any waters – and many land areas that only temporarily hold water – assuming a scope of authority Congress never authorized.” It indicates federally controlled waters that previously were subject to the federal Clean Water Act were considered “navigable” ones. “It effectively eliminates any constraints the term ‘navigable’ previously imposed on the agencies’ Clean Water Act jurisdiction, and few, if any, waters would fall outside of federal control,” said the Farm Bureau.
It contends the 2015 rule creates confusion and risk by giving federal agencies “almost unlimited authority to regulate, at their discretion, any low spot where rainwater collects, including common farm ditches, ephemeral drainages, agricultural ponds. and isolated wetlands found in and near farms and ranches across the nation, no matter how small or seemingly unconnected they may be to true ‘navigable waters.’”
It adds: “The 2015 rule defines terms such as ‘tributary’ and ‘adjacent’ in ways that make it impossible for farmers and ranchers to know whether the specific ditches, ephemeral drains or low areas on their land will be deemed ‘waters of the U.S.’ But these definitions are broad enough to give regulators (and citizen plaintiffs) justification to assert that such areas are subject to Clean Water Act regulation and give the agencies sweeping new authority to regulate land use, which they may exercise at will, or at the whim of a citizen plaintiff.”
The National Cattlemen’s Beef Association promised it would continue to fight WOTUS in Congress and the courts.
“The South Carolina court has effectively brought WOTUS back from the dead in 26 states, creating a zombie rule that threatens the rights of farmers and ranchers across the country,” the Beef Association’s environmental lawyer was quoted as saying.
Certain environmental groups are apparently behind the push for additional federal control.
Norton, the judge who issued the South Carolina ruling, contended it should have impact across “a vast array of wetlands across the United States” and not just those in South Carolina.