“The rule that was developed in 2015 was a significant overreach,” said Don Parrish, director of regulatory relations with the American Farm Bureau Federation, which has lobbied for the repeal and replacement of the rule. “It overstepped the limit of protecting clean water and tried to regulate land use. It created liabilities that can end up putting farmers in jail.” He was referring to actions like using pesticides, he said.
The Obama rule, developed under the authority of the 1972 Clean Water Act, was designed to limit pollution in about 60 percent of the nation’s bodies of water, protecting sources of drinking water for about one-third of the United States. It extended existing federal authority to limit pollution in large bodies of water, like the Chesapeake Bay and Puget Sound, to smaller bodies that drain into them, such as tributaries, streams and wetlands.
Under the rule, farmers using land near streams and wetlands were restricted from doing certain kinds of plowing and from planting certain crops, and would have been required to obtain E.P.A. permits in order to use chemical pesticides and fertilizers that could have run off into those bodies of water. Those restrictions will now be lifted.
It is expected that the new rule, still being developed, will retain federal protections for larger bodies of water, the rivers that drain into them and wetlands that are directly adjacent to those bodies of water.
But it will quite likely strip away protections of so-called ephemeral streams, in which water runs only during or after rainfalls, and of wetlands that are not adjacent to major bodies of water, or connected to such bodies of water by a surface channel of water. Those changes would represent a victory for farmers and rural landowners, who lobbied the Trump administration aggressively to make them.
Lawyers said the interim period between the completion of the legal repeal of the Obama rule and the implementation of the new Trump rule this year could be one of regulatory chaos for farmers and landowners, however.
“The Obama clean water rule had very clear lines defining which waters are protected by the Clean Water Act, versus which waters are not, while repealing the rule means replacing those lines with case-by-case calls,” said Blan Holman, an expert on water regulations with the Southern Environmental Law Center.
“This will be very unpredictable,” Mr. Holman said. “They are imposing a chaotic case-by-case program to replace clear, bright-line rules.”
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