Jul 2, 2015

Finalized Clean Water Rule released amid ag pushback

Agriculture groups were critical of the anticipated impact of new rules expanding the definition of protected waterways recently issued by EPA and the U.S. Army Corps of Engineers.

According to the administration of President Barack Obama, the beefed-up rules would shield small streams, tributaries and wetlands from pollution and development.

But what costs will the new measures bring to the agriculture community?

Echoing the concerns of farm groups, lawmakers have said the rules could greatly expand the reach of the clean water law and create confusion among officials in the field as to which bodies of water must be protected. Farmers wary of more federal regulations are concerned that every stream, ditch and puddle on their private land could now be subject to federal oversight.

“We are undertaking a thorough analysis of the final WOTUS (Waters of the United States) rule to determine whether the Environmental Protection Agency listened to the substantive comments farmers and ranchers submitted during the comment period,” Bob Stallman, president of the American Farm Bureau Federation, said in a statement.

“Based on EPA’s aggressive advocacy campaign in support of its original proposed rule – and the agency’s numerous misstatements about the content and impact of that proposal – we find little comfort in the agency’s assurances that our concerns have been addressed in any meaningful way,” Stallman said. “The process used to produce this rule is flawed. The EPA’s proposal transgressed clear legal boundaries set for it by Congress and the courts, and dealt more with regulating land use than protecting our nation’s valuable water resources.

“We are looking in particular at how the rule treats so-called ephemeral streams, ditches, small ponds and isolated wetlands,” Stallman said. “We will decide on an appropriate course of action once that review is complete.”

The Clean Water Rule will be effective 60 days after publication in the Federal Register.

Michigan Farm Bureau (MFB) issued a statement saying it “is sorely disappointed” with EPA’s announcement.

“The new rule is bad news for farm families in Michigan, allowing the EPA to regulate far beyond its authority as prescribed by Congress and affirmed by the U.S. Supreme Court,” according to MFB. “The rule’s ‘clarification’ is – still – a thinly veiled power grab enabling EPA regulators to usurp control over every unnamed county drain, every farm ditch and every low spot that briefly collects rainwater after a thunderstorm.

“The EPA can claim that agricultural exemptions aren’t changing, and that they’ve addressed farmers’ concerns, but the bottom line is that they still define ‘waters of the U.S.’ so broadly that the regulated community has no clarity in determining what waters are jurisdictional and what aren’t,” MFB stated. “The agency’s stubborn refusal to define a tributary more clearly than waters feeding into traditional navigable waters leaves that would-be definition up to practically any one individual’s interpretation. We now look to Congress to resolve this issue.”

Administration defends rules

The rules are designed to clarify which smaller waterways fall under federal protection after two Supreme Court rulings left the reach of the Clean Water Act uncertain. EPA Administrator Gina McCarthy said the waters affected would be those with a “direct and significant” connection to larger bodies of water downstream that are already protected.

The Supreme Court decisions, in 2001 and 2006, left 60 percent of nation’s streams and millions of acres of wetlands without clear federal protection, according to EPA. The new rules say a tributary must show evidence of flowing water to be protected – like a bank or a high water mark. The regulations would kick in and force a permitting process only if a business or landowner took steps to pollute or destroy those waters.

Obama said in a statement that the rule “will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable.”

The rules have run into opposition from farm groups and the Republican-led Congress. The House voted to block the regulations earlier in May, and a similar effort was underway in the Senate.

After the rule was released, Republican Sen. James Inhofe of Oklahoma, chairman of the Senate Environment and Public Works Committee, said his panel would consider the Senate bill to force the EPA to withdraw and rewrite the rules this summer and “continue our work to halt EPA’s unprecedented land grab.”

EPA’s McCarthy has acknowledged the proposed rules issued last year were confusing and said the final rules were written to be clearer. She said the regulations don’t create any new permitting requirements for agriculture and even adds some new exemptions for artificial lakes and ponds and water-filled depressions, among other features.

These efforts were “to make clear our goal is to stay out of agriculture’s way,” McCarthy said in a blog on the EPA website.

According to EPA, in developing the rule, “the agencies held more than 400 meetings with stakeholders across the country, reviewed over one million public comments, and listened carefully to perspectives from all sides. EPA and the Army also utilized the latest science, including a report summarizing more than 1,200 peer-reviewed, published scientific studies that showed that small streams and wetlands play an integral role in the health of larger downstream water bodies.

“A Clean Water Act permit is only needed if a water is going to be polluted or destroyed,” the EPA news release stated. “The Clean Water Rule only protects the types of waters that have historically been covered under the Clean Water Act. It does not regulate most ditches and does not regulate groundwater, shallow subsurface flows or tile drains. It does not make changes to current policies on irrigation or water transfers or apply to erosion in a field. The Clean Water Rule addresses the pollution and destruction of waterways – not land use or private property rights.

“The rule protects clean water necessary for farming, ranching and forestry and provides greater clarity and certainty to farmers about coverage of the Clean Water Act. Farms across America depend on clean and reliable water for livestock, crops and irrigation. The final rule specifically recognizes the vital role that U.S. agriculture serves in providing food, fuel and fiber at home and around the world. The rule does not create any new permitting requirements for America’s farmers. Activities like planting, harvesting and moving livestock have long been exempt from Clean Water Act regulation, and the Clean Water Rule preserves those exemptions.”

– Gary Pullano