Redefinition of WOTUS burdens forest landowners

More than two dozen states — Maine is not one of them — and at least a dozen organizations, including the National Alliance of Forest Owners, have filed lawsuits against the U.S. Environmental Protection Agency for redefining the “Waters of the United States,” or WOTUS, erasing “navigable” and usurping states’ rights by including local seasonal streams, farm irrigation ponds, roadside ditches, and even “connective” dry lands placed under authority of the Clean Water Act.

Ditch the ruleDavid Tenney of NAFO told Biomass Magazine that the EPA’s proposal threatens to impose costly, new administrative burdens and litigation risk for states and forest owners.

“These burdens include confusion over whether water quality standards would apply to streams and small channels that are wet only part of the year, man-made ditches and entire floodplains,” Tenney said. “They also include expanded permit requirements for the use of herbicides and increased exposure to citizen lawsuits.  Maintaining, and not expanding, EPA’s regulatory authority under the Clean Water Act would prevent significant financial and regulatory uncertainty for forest owners that could reduce economic returns, diminish land values, hasten the conversion of private forestland to other land uses and reduce the public benefits private forests provide.”

Maine’s congressional delegation inquired about MFPC’s position. We have been following the issue with the help of NAFO and the American Forest & Paper Association (see AFPA fact sheet). Executive Director Patrick Strauch  prepared a quick response to Collins’ staff in early July, but also seeks feedback from members.

“The proposed changes are looking to solve a problem that currently doesn’t exist in many states,” said Don Tardie. “I would also add that creating a harsher set of rules doesn’t necessarily make states that perhaps have problems in complying, to comply while having a very negative impact on the system of BMPs and other compliance initiatives in states that currently don’t have a problem.”

Utah and eight others filed with Georgia in Augusta’s U.S. Court; Alaska and 11 others filed with North Dakota in Bismark. Days later Mississippi and Louisiana filed with Texas in Galveston; Michigan filed with Ohio in Columbus; Oklahoma filed alone in Oklahoma City.

In addition to NAFO, organizations such as the American Road and Transportation Builders Association, National Association of Home Builders, National Association of Manufacturers, and Public Lands Council also oppose the rule.

“Rather than provide more clarity, the final rule is riddled with caveats and exceptions that expand rather than reduce uncertainty,” NAFO said. “The agency says on the one hand that man-made ditches and rainwater control features put in place to meet CWA requirements are excluded as WOTUS, except when the agency determines they are not. The final rule categorically includes minor streambeds that are mostly dry as WOTUS, except when the agency says they are not. The complexity of the regulatory web is giving water lawyers all over town plenty to do as they try to discern agency intent, but it does little if anything to restore confidence to forest owners over their regulatory and legal exposure.”

MPBN reported July 22 that a nationwide survey, conducted by the National Wildlife Federation, polled 1,000 registered voters across the political spectrum who identify as hunters, anglers or both. More than four-fifths of them supported the revised Act.

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