Woe is WOTUS. President Trump on Tuesday afternoon signed an executive order mandating a review of the Clean Water Rule, and the industry started poppin’ bottles minutes after his pen hit the paper: “President Trump Overturns WOTUS,” reads a release from the National Corn Growers Association sent at 2:46 PM, which adds that the law “was arbitrarily written, legally indefensible, and extremely difficult to implement.”
But it’s a little premature to talk about “overturning” the Clean Water Act, and let’s not refer to it in the past tense just yet. As the New York Times points out, the Trump administration doesn’t have the legal authority to repeal the Obama-era rule outright. Instead, the rule (also called Waters of the United States, or WOTUS) will be put “under review” by incoming Environmental Protection Agency (EPA) Administrator Scott Pruitt. As CNN explains, that review process means EPA and the Army Corps of Engineers will now have to ensure every part of the bill promotes economic growth. You can imagine how that might go (remember, Pruitt sued EPA over the rule back when he was attorney general of Oklahoma). But the process could take years, and Pruitt would have to replace the current rule with a new version.
As it stands, WOTUS defines the waters covered under the 1972 Clean Water Act as about 60 percent of the nation’s water bodies. That means the federal government can regulate the streams, headwaters, and wetlands that feed into major rivers and lakes. When the Obama administration passed the rule, it angered a lot of landowners because they felt like the government was trying to limit use of their own land.
We’re getting to the food angle, I promise: Members of the Farm Bureau vehemently opposed the rule on pretty much the same grounds as all the other landowners: that the federal government was overstepping its boundaries, that the rule caused confusion. They even created a social media campaign using the hashtag #DitchTheRule (one of their big complaints was that WOTUS would regulate their ditches. In fact, it actually reduced the number of ditches under federal purview).
Here’s the thing: Former EPA administrator Gina McCarthy addressed those concerns time and time again. According to her testimony, farmers were mostly exempt from Waters of the United States. “I want to emphasize that farmers, ranchers, and foresters who are conducting the activities covered by the exemptions (activities such as plowing, tilling, planting, harvesting, building and maintaining roads, ponds and ditches, and many other activities in waters on their lands), can continue these practices after the new rule without the need for approval from the Federal government,” she said in a 2015 WOTUS hearing (hat tip to NSAC for transcribing that hearing).
President Trump has indicated he hopes the review will result in a total rollback: NPR reports he says the order is “paving the way for the elimination” of the rule. NPR also points out that President Trump stands to gain from a WOTUS rollback: another vocal opponent of WOTUS was the National Golf Course Owners Association. None of us need reminding that President Trump owns twelve of those.