New WOTUS rule projected for September 2019

The Environmental Protection Agency says it is on track to issue a final rule replacing the Obama administration’s 2015 “waters of the United States” rule by September 2019, but don’t hold your breath.

If former EPA Administrator Scott Pruitt’s promises had come true, there already would be a new WOTUS rule in place. Now, in the latest semiannual regulatory agenda released by the federal government, EPA estimates it will publish a proposed replacement rule by this month, which aligns with pledges made recently by Acting Administrator Andrew Wheeler

Even if a proposal were published this month, however, the complex nature of the rulemaking could make it difficult for the agency to meet the September 2019 target.

“We’re hopeful, but they better get busy,” said Don Parrish, senior director for regulatory relations at the American Farm Bureau Federation.

As he has said before, Parrish said it’s important that the agencies allow plenty of time for public comment. He said he supports a 90-day comment period on the new proposal.

Because of court rulings from federal judges in different states, the 2015 rule is now in effect in 22 states while its implementation is blocked in 28 others.

Also in the regulatory agenda, USDA said it plans to issue a pair of rules that could push some people off the Supplemental Nutrition Assistance Program. A new proposal included in the agenda would roll back a provision known as “broad-based categorical eligibility” that essentially allows low-income people in some states to qualify for SNAP at higher earnings than the federal cutoff, which is about $32,000 for a family of four.

House Republicans have been trying to tighten the categorical eligibility rules through the farm bill but have so far been unsuccessful.

USDA also reiterated plans to finalize a rule that could tighten work requirements for able-bodied SNAP recipients without dependents.

Other regulatory actions that appear in the agenda:

  • EPA plans to publish a proposed rule in February allowing gasoline blended with 15 percent ethanol (E15) to be used during the summer, as is currently the case for E10. EPA is also proposing regulatory changes “to modify certain elements of the renewable identification number (RIN) compliance system under the Renewable Fuel Standard (RFS) program, in order to improve RIN market functioning.” The agency’s estimated date for a final rule is May 2019.
  • EPA plans to propose a rule in January to modify the applicable volumes targets for cellulosic biofuel, advanced biofuel, and total renewable fuel for 2020-2022. “In concert with these modifications, EPA will be proposing volume requirements for biomass-based diesel for 2021 and 2022.” A final rule would follow in December 2019, EPA estimates.
  • EPA plans to propose a rule in January that would defer to state or tribal minimum age requirements for commercial applicators, private applicators and noncertified applicators who use restricted-use pesticides under the supervision of a certified applicator and to establish a federal minimum age of 16 years for all three types of applicators if states or tribes do not establish enforceable minimum age requirements.
  • Also regarding pesticide application, EPA plans, in January, to propose to make changes to the farmworker protection rule “related to minimum age, designated representative, application exclusion zone (AEZ), and entry restrictions for enclosed space production.”
  • The Food and Drug Administration plans to issue a proposal in March to update the term “healthy” as used for food “to be consistent with current nutrition science and federal dietary guidelines,” the agency said. “The proposed rule would revise the requirements for when the claim ‘healthy’ can be voluntarily used in the labeling of human food products so that the claim reflects current science and dietary guidelines and help consumers maintain healthy dietary practices.”
  • FDA plans to issue a final rule by September 2019 “amending its regulation that authorizes the use of health claims regarding the relationship between soy protein and coronary heart disease on the label or in the labeling of foods.” FDA has proposed that companies cannot make the claim that soy protein reduces the risk of heart disease.