Vote in Congress ups the pressure on EPA proposal


Issue Date: September 17, 2014
By Christine Souza

Opponents say they hope renewed national attention to a proposed rule that would expand U.S. Environmental Protection Agency enforcement authority under the Clean Water Act will send a message to the EPA that it has gone too far.

The renewed attention came in the form of floor debate in the U.S. House of Representatives, which voted in favor of legislation that would prohibit the EPA and the U.S. Army Corps of Engineers from proceeding with what has become known as the "waters of the U.S." proposed rule.

The waters of the U.S. proposal, issued in March by the EPA and the Corps, would expand the agencies' regulatory authority under the Clean Water Act to certain types of land features and waters—including puddles, ponds, ditches, and temporary and small wetlands—giving the agencies the power to regulate and potentially prohibit land-use and farming practices in or near them.

Illustrating that there are legitimate concerns with the EPA proposal, the House bill—H.R. 5078, the "Waters of the United States Regulatory Overreach Protection Act"—attracted bipartisan support from California Republicans and some Democrats, according to California Farm Bureau Federation Federal Policy Division Manager Rayne Pegg. The bill passed last week by a vote of 262-152, with 35 Democrats and all but one Republican voting for the legislation.

Pegg called the House legislation a clear message to EPA that it has overstepped its authority and needs to rethink its rule. Regardless of whether the Senate passes the bill, she said, it's a clear sign that EPA has created a rule that does not work on the farm.

"Congressional members from both parties are saying the EPA needs to rethink its rule and understand its on-the-ground implications," Pegg said. "Farmers are already doing a number of things to protect water quality and wildlife. Adding an additional layer doesn't necessarily achieve more protection, but just creates more paperwork and makes farmers vulnerable to more litigation. Most farmers just want to farm the land that they know and have grown up on."

The House bill would specifically prohibit the EPA and Corps from developing, finalizing, adopting, implementing, applying, administering or enforcing the proposed waters of the U.S. rule.

"The rule opens farmers up to third-party lawsuits," CFBF President Paul Wenger said. "Farmers doing the right thing could still get stuck in court defending their practices."

If ditches and wet spots in fields are deemed "navigable waters" under the proposed rule, he said, many routine farming and ranching activities could result in a "discharge" to navigable waterways and require a permit.

San Joaquin County winegrape grower Kris Gutierrez, who also operates a vineyard management company, said he opposes the EPA proposal.

"The agencies want to change waters of the U.S. to be any body of water that eventually connects to the rivers and streams and oceans. It is going to make operating difficult for anyone, including farmers and municipalities," said Gutierrez, who met with EPA Administrator Gina McCarthy earlier this year as part of a CFBF federal policy trip to Washington, D.C.

Gutierrez said those making decisions in Washington often do not have an understanding of agriculture and "what lengths we go to protect the water on our orchards and fields."

"We farm out in the islands in the delta. We test the water that comes out of the delta and onto our fields, and test the water coming back into the system. The water has always been cleaner after it has left the farm versus when it arrives," Gutierrez said.

While federal agencies say the proposed rule contains exemptions for agriculture, farm groups say the exemptions only apply to one part of the act—Section 404, the "dredge and fill" permit program—and provide no protection from enforcement involving other common farm activities that could trigger Clean Water Act liability and the need for Section 402 National Pollutant Discharge Elimination System permits.

To learn more about the EPA waters of the U.S. proposal, see the American Farm Bureau website at ditchtherule.fb.org.

(Christine Souza is an assistant editor of Ag Alert. She may be contacted at csouza@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.