Ag organizations call for EPA to ‘ditch the rule,’ provide clarity on Clean Water Act protection
May 5, 2014
Agriculture organizations are taking seriously the rule proposed by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers in March. The purpose of the rule is to clarify protection under the Clean Water Act for streams and wetlands. The agencies will be gathering public input until July 21, before submitting a final rule.
"The proposed rule will benefit businesses by increasing efficiency in determining coverage of the Clean Water Act," according to an EPA press release. Determining Clean Water Act protection for streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006. For nearly a decade, members of Congress, state and local officials, industry, agriculture, environmental groups, and the public asked for a rulemaking to provide clarity, the press release said.
Ag organizations like the American Farm Bureau Federation and National Cattlemen's Beef Association are saying they have been asking for clarification of this rule, but the proposed rule isn't what they asked for.
A website created by AFBF for the purpose of gaining support for their "Ditch the Rule" campaign says, "Where the Clean Water Act has previously defined those waters [waters of the U.S.] as those that are navigable or are significantly connected to navigable waters, the proposed rule would include smaller waters and even some dry land in the definition of 'waters of the U.S.' As a result, permit requirements that apply to navigable waters would also apply to ditches, small ponds and even depressions in fields and pastures that are only wet when there is heavy rain. If landowners could not get permits to do things like build fences and use pesticides to control bugs and weeds—something that would be far from guaranteed—farming and ranching would be much more costly and difficult. Other landowners, too, would face roadblocks to things they want to do, such as build a house or plant trees."
"This is not just about the paperwork of getting a permit to farm, or even about having farming practices regulated," American Farm Bureau Federation president Bob Stallman said. "The fact is there is no legal right to a Clean Water Act permit—if farming or ranching activities need a permit, EPA or the Army Corps of Engineers can deny that permit. That's why Clean Water Act jurisdiction over farmlands amounts to nothing less than federal veto power over a farmer's ability to farm."
According to the EPA press release, the proposed rule clarifies protection for streams and wetlands. The proposed definitions of waters will apply to all Clean Water Act programs. It does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court's more narrow reading of Clean Water Act jurisdiction, the press release says.
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"We are clarifying protection for the upstream waters that are absolutely vital to downstream communities," said EPA Administrator Gina McCarthy. "Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat, to farmers who need abundant and reliable sources of water to grow their crops, to hunters and fishermen who depend on healthy waters for recreation and their work, and to businesses that need a steady supply of water for operations."
According to a memo from the National Cattlemen's Beef Association, the rule does not do what they've been asking, and it does extend EPA's control.
"The proposal attempts to generally make all waters jurisdictional and then either excludes certain categories of waters from Waters of the U.S. (WOTUS) or exempts certain activities from permitting requirements under Sec. 404. The difference between the two is fundamentally important. Exempting activities means the water in question is still under WOTUS, while an exclusion means that the water itself is completely outside of WOTUS and the entirety of the Clean Water Act."
EPA says these exemptions will protect farmers from the new rule. But Stallman says those exemptions will apply only to farming that has been ongoing since the 1970s, not new or expanded farms. Even for those farms, the exemptions do not cover weed control, fertilizer use or other common farm practices. The already narrow exemptions, Stallman said, have existed for years but have been further narrowed by EPA guidance issued simultaneously with the proposed rule.
"The EPA exemptions offer no meaningful protection for the hundreds of thousands of farmers and ranchers whose operations and livelihoods are threatened by this expansion of EPA's regulatory reach," Stallman said.
NCBA also objects to being listed as an entity that requested rulemaking, as part of EPA's efforts to gain industry support.
"This is a gross mischaracterization of comments provided by NCBA on the proposed guidance, stating the agencies should engage in a rulemaking that provides all the procedural protections available under the law to balance all interests in crafting a rule that protects water quality and does not stifle productivity. The proposed rule is not such a rulemaking." The list of "Persons and Organizations Requesting Clarification of 'Waters of the United States' By Rulemaking," lists approximately 100 organizations, including NCBA, AFBF, the Sierra Club, National Wildlife Federation and other organizations representing nearly every sector that has a connection to natural resources. The list includes this statement at the top, "Request for a rulemaking process does not imply support for the rule as proposed," which is something AFBF and NCBA want to make sure is clear.
The NCBA memo also says, "The agency also wrongly states the regulation is based on the best available peer-reviewed science, but the truth is the 'science' has not been peer reviewed. EPA's Office of Research and Development conducted a literature review that has not yet been fully reviewed by the Science Advisory Board."
"America's waters and wetlands are valuable resources that must be protected today and for future generations," said assistant secretary of the Army (Civil Works) Jo-Ellen Darcy. "Today's rulemaking will better protect our aquatic resources, by strengthening the consistency, predictability, and transparency of our jurisdictional determinations. The rule's clarifications will result in a better public service nationwide."
"EPA and the Army Corps of Engineers have said the WOTUS rule provides clarity and certainty. The only thing that is clear and certain is that, under this rule, it will be more difficult for private landowners to farm and ranch, build homes or make changes to the land-even if the changes that landowners propose would benefit the environment. This is pure and simply wrong, and it is why we need to ditch the rule," Stallman said. F