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Regan: WOTUS Rule 'Narrows' CWA Test
By Todd Neeley
Tuesday, March 28, 2023 3:51PM CDT

LINCOLN, Neb. (DTN) -- With the EPA facing legal challenges to the waters of the U.S. rule (WOTUS) and pushback from Congress, EPA Administrator Michael Regan told a House committee on Tuesday he does not agree with a characterization by ag groups and now 26 states that the WOTUS rule illegally expands federal authority over waters.

Regan testified on the agency's proposed 2024 budget before a House Appropriations Subcommittee, and Republican committee members used the occasion to take shots at the WOTUS rule.

The Biden administration rule currently is on hold from enforcement in Texas and Idaho, and 24 other states have motioned for an injunction against the rule.

Regan told the committee the agency believes the new rule "narrowed" the test put forward by the Supreme Court on making Clean Water Act determinations, emphasizing that USDA also supports the rule.

TWO TESTS

The final WOTUS rule uses two tests when determining Clean Water Act jurisdiction of waters -- significant nexus and relatively permanent.

Ag groups and states have argued in lawsuits that the two tests expand EPA's authority.

"So, I've engaged more of our ag constituency more than any administrator in modern history," Regan said. "And what I learned from that was, what could we do to improve upon the lack of an existing rule? So, we went back to 2015, and then we codified what we consider to be streamlined interpretations of two Supreme Court rulings. And then, based on the engagement that we have, we codified or clarified exclusions that support farmers, like prior converted cropland, and for ranches, like artificial ponds, using drinking water for their herds. We also simplified and narrowed the test that the Supreme Court set to make it easier to determine which waters are covered and which aren't."

WHY FINALIZE NOW?

Regan was challenged on the agency's decision to finalize the WOTUS rule before the Supreme Court issues a ruling in Sackett v EPA -- a case that could change the way the agency makes wetland determinations.

"Why in the world would you issue the WOTUS rule when a major case is before the Supreme Court," Rep. Michael Simpson, R-Idaho, a member of the House Appropriations Committee, asked Regan.

"It's almost like you're trying to sway the Supreme Court or saying, 'To hell with you, this is what we're going to do.'"

Regan said the agency moved forward on the WOTUS rule because the Trump rule was thrown out by federal courts.

"There are also some aspects of this rule that the Sackett case won't touch," he said.

"And so, what we decided to do was move forward, try to codify a number of exemptions that were requested of us by the agricultural community. And I obviously respect the Supreme Court's position. I will respect the Supreme Court's ruling. What we have now is we can adjust it to what the Supreme Court rules this summer. We will adjust this rule, and we will move forward in a much more expeditious way than waiting to June and then start a two- to three-year rulemaking process. So, I think we are ahead of the curve in terms of having the framework for moving forward."

COME VISIT MONTANA

Rep. Ryan Zenke, R-Mont., and former secretary of the interior under Trump, asked Regan if he had been to Montana and visited the Yellowstone River. Regan answered "No."

"Well, how is it that you think you can manage Yellowstone River if you don't know where it is?" Zenke said.

"So, how is it that you think you're in a position to manage our water in Montana when you haven't been there? Talk to the people that actually live out there. Now, I understand there's a lot of difference between East and West Coast, and I appreciate that. What we see is a rule that is an infringement on states' rights, and it worries a lot of farmers. And when people see a threat on their lifestyle, they get a lot of upset."

Simpson said he believes many states see the Biden WOTUS rule as an attempt by the federal government to change the cooperative relationship with states.

"People are concerned that it is going to substantially affect their ability to produce on their farm," Simpson said.

"And there are states who believe that the EPA is trying to take over the state's traditional role in waters of the United States, and that essentially, the EPA wants to control all the waters."

Read more on DTN:

"Fed Court Allows Ag WOTUS Intervention," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley


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