EPA Administrator Scott Pruitt Working to Define WOTUS in Black and White, and Eliminate the GreyMon, 31 Jul 2017 12:32:29 CDT
U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt’s multistate action tour made a stop in Oklahoma this past week, where Dr. Shannon Ferrell of the Oklahoma State University Agricultural Economics Department, offered commentary regarding the Administrator’s recent decision to begin the process to redefine the “Waters of the United States” (WOTUS) rule and help return regulatory certainty to farmers, landowners, and ranchers across the country. Ferrell spoke to Radio Oklahoma Ag Network Farm Director Ron Hays, on his views regarding the challenges of this task and his expectations on what the outcome may be. You can hear their entire conversation regarding the WOTUS issue, addressed during Pruitt’s visit, by clicking or tapping the LISTEN BAR below.
At the root of the issue, Ferrell says, the original or 2015 version of the Waters of the United States rule drafted by the EPA, then under Gina McArthy, and the US Army Corps of Engineers, included what is referred to as an “Nexus” test, which in essence determined whether or not a body of water came under the jurisdiction of the WOTUS rule. More than anything, though, Ferrell says it caused a lot of confusion for farmers, trying to understand what rules to follow regarding waters in question on their property.
“That’s hard for anybody to make a determination of, and in fact it was proving to be really hard for EPA and the Corps of Engineers to make these kind of determinations,” said Ferrell. “That has made it really hard for producers to know, ‘When am I supposed to be following those rules and when aren’t I?’”
However, since his appointment to the EPA, Administrator Pruitt, has begun the process to reverse the controversial language of the rule and replace it with guidelines that are more appropriate and closer to the interpretation of the prevailing opinion of the Supreme Court, written by Justice Scolia at the time of the Court’s decision.
“Justice Scalia’s decision, which was actually a bit more clean-cut, a little bit more focused on the textual language of the (Clean Water Act), was actually the prevailing opinion,” Ferrell said, compared to the decision written by Justice Kennedy used in the original drafting of the WOTUS rule. “I think what you heard Administrator Pruitt saying today, is that they want to hue a little closer to that one because, they feel that will give producers a lot more clarity.”
And of course, the matter of what is and what isn’t a “navigable” water has played into the discussion as well. Obviously, there are drastic differences in opinion of a correct definition for this term when comparing the McArthy and Pruitt administrations. Ferrell says though that looking at the Congressional record, the intention of the definition was more narrow, and much more logical than it has been made out to be. Pruitt and his agency are now tasked with revising that definition.
“How do we come up with a definition of navigable that makes intuitive sense but kind of adheres to the language of the statute and that’s still protective of enough waters for us to make sure we’ve got clean drinking water and clean agricultural irrigation water as well,” posed Ferrell. “That’s been the balance they’ve been trying to strike for a while.”
Pruitt has been optimistic that a new proposal of the rule will be made available perhaps by September, and Ferrell says the revision will most likely attempt to reflect a more stringent set of guidelines that eliminates the guesswork of defining the rule’s jurisdiction.
“I think now we’re trying get a lot more black and white and narrow that grey area as effectively as we can,” he concluded.
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