EPA's Waters of the US Proposal Concerns Keep Flowing

Multiple Congressional hearings bring light to the mess created under the proposed EPA waters of the U.S. rule.

For the past two months, I’ve regularly been immersed in trying to better understand the proposed Waters of the U.S. rule rolled out by the Environmental Protection Agency and Army Corps of Engineers earlier this spring.

In my regular world of politics, often the facts get misconstrued and emotions drive the discussion. But I firmly believe that’s not the case in a proposed regulation from this administration. The rule is being sold to agriculture as providing clarity after Supreme Court cases and it won’t expand EPA’s reach on your farm.

But that’s far from the truth, and Congress is beginning to take notice.

Over the last month, the House has held three different hearings. It’s been refreshing that in a world of divided politics with little middle ground, members from both sides are calling out the EPA on what it’s trying to do when it comes to the rule, especially as it relates to agriculture.

The House Committee on Small Business held a hearing May 29 on the rule’s impact on small businesses. Chairman Sam Graves, R-Mo., claimed the proposed rule creates more confusion not less. “Terms like ‘neighboring,’ ‘floodplain,’ ‘riparian area,’ ‘tributary’ and ‘significant nexus’ are vaguely defined and fail to clarify where Clean Water Act jurisdiction will end,” he said.

At the same hearing, Jack Field, cattle rancher from Yakima, Wash., and executive vice president of the Washington Cattlemen’s Assn., testified that he believes the proposed rule has the potential to impact every aspect of his operation and dictate land use activities.  He also said he was confident in saying he believes the rule will actually have a “detrimental impact on water quality.”

The House Transportation and Infrastructure Committee subcommittee on Water Resources and Environment held a hearing June 11 which drilled for three hours top administrative officials from EPA and the Corps. (Read full story here.)

The discussion was dominated by opposition of the rule as members and stakeholders stressed their concerns on the presumed expansion of jurisdiction under the proposed rules. Another common thread among those questioning the administrative officials were representatives who were farmers themselves or expressed the concerns voiced by the agricultural community about how the rule could require additional permitting, limit farmers’ ability to voluntary take measures to improve the environment and the rights of private landowners.

The House Agriculture subcommittee on Conservation, Energy, and Forestry held a hearing June 19 which reviewed the Interpretive Rule regarding the applicability of Clean Water Act agricultural exemptions.

Members of agricultural groups as well as members of the House Agriculture Committee came to the conclusion that the interpretive rule that what was intended to provide clarity for farmers could in fact increase the risk of litigation, create more confusion for farmers, cause a disincentive for implementing conservation practices and could erode the valued relationship that currently exists between farmers and NRCS officials. (Read full story here.)

In the hearing, Rep. Reid Ribble, R-Wisc., asked what NRCS undersecretary Robert Bonnie hoped to take away from the hearing. Bonnie responded that that the agencies need to continue to focus on outreach, stating there’s a communication problem and he continued to believe the rule creates opportunity to put conservation on the ground.

Ribble challenged it’s more of a confusion problem rather than a communication problem.

Rep. Kristi Noem, R-S.D., questioned whether the interpretive rule on conservation practices provides any certainty under the Clean Water Act. She stated that, “If this rule provides that kind of certainty for the agriculture industry, I am baffled, because none of the agriculture industry wants this. Nobody is in favor of it."

Pretty much sums it up – nobody is in favor of this but the agencies keep trying to swim upstream with a regulation that could have all farmers drowning in increased regulations.

Read some of my previous blog posts on EPA’s rule:

Can EPA Be Farmers’ Friend and Foe?

More Time Needed To Evaluate EPA Water Rule

And in case you missed it, check out the excellent and thorough five-part series written by Gary Baise, lawyer at OFW Law.

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