MUDDY WATER: Ag organizations campaign against water rule
October 26, 2014
Most dictionary definitions run in the 15- to 20-word range. But for the Environmental Protection Agency and Army Corps of Engineers, five words–"Waters of the United States"–require more than 110,000 words to define.
In March the EPA issued the Definition of "Waters of the United States" under the Clean Water Act; Proposed Rule.
This proposed rule was created in response to requests from members of congress, state and local officials, industry, agriculture, environmental groups, scientists and the public, according to the EPA website. Under the existing rule, permits took years to be granted and no one was completely sure when a permit was required.
The proposed rule is supposed to clarify that, but that clarification is muddying more waters, according to Dale Moore, executive director of public policy for the American Farm Bureau Federation. "Any farmer or rancher out there is going to have a difficult time determining if a ditch or a low spot in the field could give the EPA the room they need to say that's a WOTUS."
When the proposed rule was released, AFBF launched a campaign called "Ditch the Rule," to rally opposition to the rule. They have been joined in their efforts by most other ag organizations, industry and state and local government officials. The terminology for the proposed rule varies from "government overreach" to "federal land grab."
The EPA has launched a counter-campaign called "Ditch the Myth," aimed at reassuring the public that the proposed rule simply clarifies what was already established, and doesn't add to their power.
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The ag industry isn't buying it.
In a series of meetings in western South Dakota earlier this month, Moore spoke to producers about AFBF's concerns with the proposed rule.
"We've tried to drive home the point that EPA doesn't have all the answers, not even to their own rule," Moore said. At the meetings, which were sponsored by the South Dakota Cattlemen's Association, South Dakota Farm Bureau and South Dakota Stockgrowers' Association, attendees—mostly ranchers—had a chance to ask questions and try to understand the implications of the novel-length document. "There were a lot of comments. Folks listened, there was some frustration, some head-scratching and mostly concern about how we can stop this," Moore said.
The National Farmers' Union was one ag organization that supported the new rule when it was released. The EPA website quotes from a statement by NFU senior vice president of programs, Chandler Goule, released soon after the WOTUS rule was issued. "NFU has long advocated for increased certainty surrounding Clean Water Act requirements for family farmers and ranchers in the wake of complicating Supreme Court decisions. Today's draft rule clarifies Clean Water Act jurisdiction, maintains existing agricultural exemptions and adds new exemptions, and encourages enrollment in U.S. Department of Agriculture conservation programs."
Six months later, on Sept. 22, NFU released a statement by their president, Roger Johnson, saying he had submitted comments on the rule, asking for several changes:
• A definition of "tributary" that clarifies without increasing CWA jurisdiction.
• A bright-line rule for "adjacent waters," reducing the need for case-by-case determinations.
• Codification of agency practice in light of Supreme Court rulings, increasing the predictability of jurisdictional determinations by the agencies.
• An exclusion of ditches that do not connect with wetlands, riparian areas, floodplains, or other waters.
• An exclusion of ditches without perennial flow from CWA jurisdiction.
• Affirmation of exemptions for normal agricultural activities.
According to Moore, the Supreme Court told the EPA the way they had been interpreting the Waters of the U.S. was giving them too much power, so they needed to come up with a definition. The definition, he said, just affirms the power they've already assumed, and did not address the court's concerns with overreach. "Just about anywhere you can see water flowing is where EPA can declare their jurisdiction."
In early September, the U.S. House of Representatives passed H.R. 5078, the Waters of the United States Regulatory Overreach Protection Act of 2014 with a bipartisan vote of 262-152. The bill would prevent the EPA and Army Corps of Engineers from implementing the WOTUS rule. Moore is not optimistic about the U.S. Senate taking similar action.
In response to ag producers' concerns, the EPA website points out that exemptions are still in place for most farming practices, but AFBF said the fine print and expanded jurisdiction will leave those exemptions open to interpretation.
For example, if a farming practice has been in place since before the rule was enacted in 1977, it is exempt. But it's unclear if that applies to the land itself or to the operator, and doesn't give guidelines for how much a farming practice could change and still be considered the same practice it was in 1977, Moore said.
The new definition also spells out that the WOTUS rule would allow for third-party lawsuits. That means if someone sees a rancher spraying weeds along his creek, they can file a lawsuit saying they're in violation of the WOTUS rule and it's the landowner's obligation to pay a lawyer to prove in court that he was within his rights and within the bounds of the WOTUS laws. The concern is that it gives special-interest groups a way to have a say in how landowners manage their property.
Moore wasn't sure if third-party suits were allowed under the previous definition, but it being spelled out in this rule is a problem. "It's one of the most dangerous parts of the law," he said.
The EPA said the new definitions would expand their jurisdiction by about 1,300 acres, nationwide. Reading the fine print and applying the new definitions to U.S. Geological Survey maps, AFBF estimates at least a half-million acres in South Dakota alone could be affected.
"They have put millions of dollars into this rule," Moore said. "They wouldn't spend that much time and money for 1,300 acres."
The EPA has been attempting to reassure landowners, saying the way the new rule is being interpreted is not the way it's intended to be applied.
"It's how their proposed regulation reads now. If that's not what you intend your rule to do, you need to pull it back and re-write these regulations," Moore said.
The required comment period for public feedback on the rule has been extended twice, once from July to October, and most recently from October to Nov. 14. Moore emphasized how important it is for people to submit comments with their concerns about the rule. "It's always helpful to have those comments coming in so we don't give EPA the chance to say we got half a million comments and everyone seemed to favor the rule."
Comments can be submitted at http://www.regulations.gov. The title to search for is "Clean Water Act; Definition: Waters of the United States."
Comments can also be sent via email to email@example.com or mail: Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Ave. NW, Washington, DC 20460. Attention: Docket ID No. EPA-HQ-OW-2011-0880.