President Donald Trump signed an executive order Tuesday to begin the legal process of rolling back federal jurisdiction over small waterways, including some stock ponds and irrigation ditches.
“I think this is the direction we need,” said Keith Nantz, a Maupin rancher who chairs the Political Action Committee of the Oregon Cattlemen’s Association.
“We’ve been in limbo the last few years with Obama’s overreach and that uncertainty has hurt private businesses. President Trump has taken the question off the table about whether we’re going to be able to run our operations without more government interference, which is good for the U.S. economy.”
A nationwide stay against enactment of the rule was granted in October 2015 by the U.S Court of Appeals for the Sixth Circuit while judges reviewed various legal matters raised in litigation.
Trump has directed the Environmental Protection Agency and U.S. Army Corps of Engineers to begin the work of getting the rule off the books.
“Today, the president took the first step to ditch this awful rule,” said U.S. Rep. Greg Walden, R-Ore, in a written statement.
“Finally, we have a president who actually listens to rural Oregon communities. This is a big victory for farmers, ranchers and property owners in rural Oregon and throughout the nation.
Walden spent much of his childhood on a farm in Wasco County and now resides in Hood River.
He said the rule would have expanded the EPA’s authority over “virtually any water in the nation, including canals, vernal pools and stock ponds.”
“I have long said that this blatant federal overreach would drastically increase uncertainty and threaten jobs and livelihoods throughout the West,” said Walden.
The definition change of WOTUS is based on a contested draft report by EPA’s Office of Research and Development detailing the connectivity and influences of streams and wetlands on down land waters.
Environmentalists are protesting Trump’s order, saying it strips protections from some of the nation’s most important ecosystems.
“Weakening America’s laws that protect clean water is wrong,” said Brett VandenHeuvel, executive director of Columbia Riverkeeper, a nonprofit group.
“President Trump’s executive order seeks to weaken protection of headwater streams and wetlands that we rely on in the Pacific Northwest for pure drinking water and wildlife habitat.
“We will continue to fight to protect clean water and defend our nation’s laws.”
Trump’s order requires EPA and the Corps to adopt a narrow interpretation of the Clean Water Act of 1972 that was advanced by the late Justice Antonin Scalia in a 2006 Supreme Court case.
Scalia determined that only wetlands that connect to navigable waterways can be protected under the act.
“President Trump’s order reaffirms both a Supreme Court decision and Congressional action that had already made it very clear to EPA that WOTUS was far beyond the lawful bounds of the Clean Water Act,” said Barry Bushue, president of the Oregon Farm Bureau Federation, on Tuesday.
“Every day farmers and ranchers work very hard to conserve water and protect water quality because their livelihood depends on it, and it’s the right thing to do.
“The EPA’s attempt at jurisdictional overreach would have been devastating to family agriculture in Oregon. We thank the Trump administration for listening to, and respecting, rural voices on this critical issue.”
On Tuesday afternoon, Trump was surrounded by farmers, housing developers and county commissioners in the Roosevelt Room as he signed the order to roll back the “very destructive and horrible rule.”
“The EPA so-called Waters of the U.S. rule is one of the worst examples of federal regulation and it has truly run amok, and is one of the rules most strongly opposed by farmers, ranchers and agricultural workers all across our land,” said the president.
“It’s prohibiting them from being allowed to do what they’re supposed to be doing. It’s been a disaster.”
The Center for Biological Diversity, a national nonprofit organization, issued a press release Feb. 28 stating that Trump’s order would “make it easier to destroy, pave over and pollute thousands of wetlands across the U.S., especially in the arid, interior western states.”
“Trump just put millions of acres of wetlands on the chopping block, and our wildlife and waters will suffer,” said Kieran Suckling, the Center’s executive director.
VandenHuevel said it is difficult to say how Riverkeeper and other conservation groups will go about challenging any reduction of water quality protection until a new rule is proposed.
He said there will be a public comment period for Americans to weigh in on the changes and then issue can be taken to court.
“It’s premature to say what will happen until everybody’s seen the new rule,” he said.
“We intend to stay engaged and we hope for the best rule we can get to protect clean water, but we don’t know what that’s going to look like just now.”
Riverkeeper works to protect over 700 miles of the Columbia.
On the other side of the political fence, numerous agriculture advocacy organizations are cheering Trump for taking action to reverse the hotly contested rule.
Thirty-one states and dozens of industry groups, including building, forestry, petroleum, mining and corn producers, filed a legal challenge against the rule shortly after it was finalized in 2015.
“The language granting EPA this authority is so open-ended it gives them the power to encroach on property rights anytime they want,” said Nantz at that time.
“This rule is agenda-driven to give the government more power over land-use and that’s a bad deal for agriculture.”
The GOP-led Congress took action in early 2016 to roll back the rule but the resolution approved by the House and Senate was vetoed by Obama.
On Tuesday, Craig Uden, president of the National Cattlemen’s Beef Association, released the following statement in response to Trump’s order:
“This extremely flawed rule would force ranchers and feedlot operators to get permits or risk excessive federal penalties despite being miles away from any navigable water. It would be one of the largest federal land grabs and private-property infringements in American history, and the president should be applauded for making EPA and the Corps reconsider this debacle. Ultimately, this rule should be taken out behind the barn and put out of its misery.”
In 2015, Gina McCarthy, former head of the EPA, claimed the WOTUS rule rewrite was necessary to clarify the intent of the CWA, which gave the agency regulatory control of major waterways designated as navigable.
She said that agriculture concerns were unfounded because an exemption in the rule says that ditches constructed through dry lands and those that don’t have water year-round would not be regulated.
The American Farm Bureau Federation, which led the fight against the rule, disagreed with McCarthy’s assertion.
They said the exemption she quoted was so narrow that any ditches with a bed, bank and high water line would be designated as tributaries and fall under EPA’s jurisdiction.
House Speaker Paul Ryan, R-Wisc., said in 2015 that EPA’s “whims and aggressions” needed to be curbed.
As an example of the agency’s overreach, he said a Wyoming rancher had been fined $37,500 a day by the agency for building a pond on his land to water his horses, even though he had state permits to do so.
A California farmer was told that he broke the law simply by plowing his land and ordered to cease and desist that activity.
Conservationists filed suit in 2015 to strengthen WOTUS out of the belief that safeguards were removed in language that was revised to lessen opposition but opened the door for greater pollution.