Let’s just cut to the chase. The new rule on the Waters of the U.S. needs to be rewritten. The sooner the Environmental Protection Agency and the U.S. Army Corps of Engineers do that, the better.
The 73-page rule, which was supposed to clarify certain aspects of the Clean Water Act, doesn’t do that. If anything, it raises more questions than it clarifies. Most troubling is the fact that any determinations over WOTUS are left to agency staff members. Landowners have no means of appealing those determinations.
This is among the many shortcomings pointed out in the 12 lawsuits filed against the EPA and the Corps over the rule. The plaintiffs are 28 states, ranchers, farmers, and environmentalists. Pretty soon you’ll see a bumper sticker reading, “Honk if you’re sued over WOTUS.” Such complaints and reservations were voiced all through the public comment period for the rule. If EPA and Corps officials read the comments, they sure didn’t do enough about them.
Other agencies listen to the public. When the Food and Drug Administration jumped the tracks writing the regulation for the Food Safety Modernization Act on irrigation water for onions and handling spent distillers’ grains, its bigwigs at least went to farmers and others who were impacted and listened to them.
Not the EPA and Corps, which apparently seek to establish a facade of infallibility for themselves. The EPA and Corps are telling all farmers, ranchers and other landowners, “trust us.” That’s not good enough. Trust is earned, and the EPA and Corps have a long way to go.
Considering the EPA’s track record in such matters, that would require a massive leap of faith. After all, this is the agency whose bigwigs maintained off-the-record email accounts that served as hotlines to their friends in environmental groups. This was the agency that insisted on closed-door meetings about rules on dust. Yes, dust. Apparently, even the most mundane issue is worthy of secrecy and intrigue for the EPA.
We assume that not everyone at the EPA is secretive and has a personal agenda. But we also understand that such an assumption does not derive from some past activities.
Last spring, EPA Administrator Gina McCarthy characterized the problem with the WOTUS rule as being primarily public relations.
“I want to tell you up front that I wish we had done a better job of rolling out our Clean Water Rule, from calling it WOTUS instead of the Clean Water Rule, to not being more crystal clear out of the gate about what we were and were not proposing, to not talking to all of you and others before we put out the interpretive rule,” she told the National Farmers Union.
But this battle is not about public relations. It’s about good public policy.
That’s what WOTUS or the Clean Water Rule lacks.
So the EPA and Corps can do the right thing. They can go back and consider the more than 1 million public comments that flooded into their offices suggesting improvements to the WOTUS rule.
Or they can wait until a judge orders them to fix the mess they created.