If federal agencies are left the task of developing implementation guidance for the Waters of the U.S. rule, the result will be a continuation of the rule’s “liabilities, confusion and chaos.”
Issuing guidance can’t fix a broken rule, according to a letter the American Farm Bureau Federation and other farm groups sent to members of the Senate who voted to oppose bipartisan legislation (S 1140) seeking to revise the rule.
The groups encouraged the Senators to support any new effort in the Senate “to direct the agencies not to implement this rule and initiate a new, more responsible, balanced and lawful rulemaking.”
According to the letter, if the Environmental Protection Agency and the Army Corps of Engineers are allowed to issue guidance for the implementation of the WOTUS rule, such guidance will be of no assistance to address the rule’s flaws, since many stem directly from the language used by the agencies in the final rule.
The final WOTUS rule contains “flaws and ambiguities that create confusion and uncertainty rather than provide clarity,” according to the letter. The rule also includes “vague terms and concepts, despite the numerous comments received” and fails to define a number of key terms that are “critical for determining whether a feature is a regulated ‘water of the United States.’”
The letter pointed out that the confusion and inconsistencies will produce similar results in the field and the nation’s courts. Already, the rule is has been challenged in multiple district and appeals courts in lawsuits brought by many dozens of states and stakeholders across the country.
The final rule’s issues are not superficial, interpretational matters that can be corrected through guidance, the letter states. Guidance “will not stop agency overreach as the rule language itself is what matters; agency personnel now and in the future and the legal system will ultimately rely on what the law says, as it is now stated in the final rule.”
The letter is posted at: http://bit.ly/1LlVzUa.