It’s baaack: WOTUS and the government land grab
We’ve all seen it happen; the professional football player who spiked the ball before he got to the end zone or slowed down to dance and got tackled short of the goal line. The runner who slows before the tape only to be passed by someone who finishes strong. Just when we thought we had the win firmly in our grasp, someone comes and drags us back to the real world.
It happened for me this week. I had been doing my victory dance on the repeal of the 2015 Waters of the U.S. (WOTUS) Rule when the Army Corps of Engineers and the Environmental Protection Agency announced that they intended to reverse the Navigable Waters Protection Rule. Just when we felt we were across the finish line on this issue, we were pulled back into political reality. Farmers and ranchers care about clean water and preserving the land, and we supported the Navigable Water Protection Rule. The rule brought about clarity and certainty to clean water efforts.
After spending a significant amount of money in courts to get the Obama era rule, which would have placed nearly 90% of the land in Montana in the control of the Corps and EPA under the guise of water quality, WOTUS was thrown out. Resource industries and other stakeholders spent three years working with landowners, conservationists and others to develop a workable plan only to now hear it announced that it was going to be reversed. It was very disappointing since I had heard Secretary of Agriculture Tom Vilsack state early on in the Biden Administration that this administration had no intention of returning to the overreaching regulation of the past and even hearing EPA Administrator Regan assure us just a few short weeks ago that he realized the flaws in the 2015 Waters of the U.S. rule and pledged that he had no plans to return to those onerous regulations.
There is some confusion about what the EPA is proposing but they are definitely saying that they are going to repeal and replace. They will focus on ephemeral features and adjacent wetlands. This will definitely be a step back from the clarity that the Navigable Waters Protection rules provided. When we start including ephemeral features which only have water in them when it rains or during runoff events, you are going down the road to land use regulation, not water quality. The line between where water ends and land begins will most likely again be blurred and it will leave a question mark on the landscape. If it is about protecting water quality, rest assured that the Navigable Waters Protection Rule did that. If it is more about controlling land use, we will need to make our voices heard throughout the process in order to stop this land grab. This will be an important test for Administrator Regan and will be pivotal to his ability to earn the trust of farmers and ranchers on this and other administration priorities. He must keep his word to recognize the efforts of agriculture and give them the opportunity to have a say in the final rule or we may return to the regulatory land grab that was the 2015 WOTUS rule.
I should have learned long ago in my career that nothing in politics is ever over and we need to be continually vigilant and keep our foot on the gas at all times. Clean water is important to our lively-hoods but clarity of rules is important as well. We shouldn’t need a team of lawyers and consultants just to farm our land.
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