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WOTUS Roundtable Discusses Adverse Effect to Farmers, Developers and Regulated Community

August 4, 2017

Nexsen Pruet’s Tommy Lavender was invited by S.C. Commissioner of Agriculture Hugh Weathers to participate in a WOTUS (Waters of the United States) Roundtable with U.S Environmental Protection Agency Administrator Scott Pruitt.  The Roundtable was also attended by Sen. Lindsay Graham (R-SC), Congressman Joe Wilson, S.C. Attorney General Alan Wilson, State Senator Danny Verdin (R-Laurens) and was part of the Administrator’s State Action Tour. 

Administrator Pruitt was invited by Commissioner Weathers to the home of Super Sod General Manager, Jim Roquemore, to hear directly from farmers, developers, and other representatives of the regulated community about how the WOTUS Rule proposed in 2015 would have adversely affected them.  Mr. Pruitt discussed withdrawal of the 2015 WOTUS Rule published in February.  He also described the current process to seek stakeholder input into a replacement WOTUS Rule that would conform to the Clean Water Act and case law defining what are and, more importantly, what are not, “waters of the US.”  He said he intends for the new rule to provide clarity and certainty.  Sen. Graham implored each participant to provide specific takeaways for Administrator Pruitt in order for there to be a meaningful idea exchange.

The recurring theme across all segments of the regulated community present was the attempt in the 2015 WOTUS Rule to assert jurisdiction over man-made features such as ditches and ponds.  Several examples were provided where these irrigation ponds and ditches would have been jurisdictional under that rule and required farmers to obtain a permit to install a culvert or expand a pond and provide compensatory mitigation for that work. 

Other comments focused on the process for obtaining a determination of the specific boundaries of WOTUS from the Corps of Engineers, the length of time required and the risk that such determinations would expire before all other regulatory approvals could be secured.  It was pointed out that the Corps will not take into consideration the fact a property owner may have relied upon jurisdictional determination of the Corps, incurring thousands, sometimes millions of dollars in costs, only to face the prospect that such boundaries could substantially change when securing a new determination because of the expiration of the determination. 

The 16 Roundtable participants were offered the opportunity to provide specific examples of how the 2015 WOTUS Rule would affect their businesses and what they hoped to see in a new rule.  Those participating in the Roundtable moderated by Commissioner Weathers also included representatives of the SC Home Builders Association, SCE&G parent company SCANA, the Carolina Golf Course Association, the S.C. Chamber of Commerce, Duke Energy, Santee Cooper, the S.C. Farm Bureau, the SC Forestry Association, Mixon Seed Co., Clemson University, and several more farmers.  The event was also attended by 20-30 other members of the regulated community along with several media outlets. 

Tommy Lavender’s private practice in environmental law spans more than 30 years.  He focuses on Environmental, Administrative and Regulatory Law and works to ensure that the firm’s business and professional clients receive high quality legal services.