Congress to be asked to ditch EPA ‘waters’ rule


Issue Date: June 3, 2015
By Christine Souza

The next steps regarding regulation of "waters of the United States" will likely be taken in Congress and the courts, now that the U.S. Environmental Protection Agency and Army Corps of Engineers have issued a final rule that would add more bodies of water and wetlands under protection through the Clean Water Act.

Analysts for farm organizations such as the American Farm Bureau Federation and California Farm Bureau Federation continue to review the 297-page document issued last week. The EPA and Army Corps say the rule will assist them in determining what streams, wetlands, ponds and ditches will be subject to regulation under the Clean Water Act, and will provide clarity about which waterways must be protected against pollution.

Agricultural and business groups say the rule will expand the regulatory authority of the EPA and the corps, giving the agencies the power to regulate and potentially prohibit land-use and farming practices in or near the specified waterways.

Kari Fisher, a CFBF environmental attorney, said the organization continues to review the final rule, but "remains concerned about the rule's potential impact on California farmers and ranchers."

"As proposed, the rule would have improperly extended federal regulation to isolated waters such as puddles and ditches, and it would have regulated land use under the guise of regulating water. Because of that, the rule would harm our members' ability to farm and ranch," Fisher said. "We're analyzing the final rule to see whether our concerns have been addressed, but unless there are fundamental changes, we'll remain opposed."

She said Farm Bureau "continues to support efforts in Congress to overturn the rule," which is due to take effect 60 days following its publication in the Federal Register.

At the national level, AFBF President Bob Stallman said Farm Bureau is undertaking a thorough analysis of the final waters of the U.S. rule, to determine whether EPA listened to the substantive comments farmers and ranchers submitted during the comment period.

"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.

Agency officials said that during the process they listened to comments from farmers and others, and incorporated that feedback into the final rule.

Don Parrish, AFBF senior director of regulatory relations, said the organization is looking at the final rule very carefully, and noted that the agencies did attempt to write the rule in a way that is more understandable. However, he said, the final rule still presents problems.

"As an example, the agencies won't even define dry land," Parrish said, "so if they won't define dry land within this rule, how do they define where their jurisdiction stops and starts? It really is breathtaking how they are trying to hide what they are doing here in a lot of jargon, as well as the ability to not really define things that are going to be really important to keep farmers out of trouble."

Parrish, who was in Sacramento for the annual AFBF Environmental Issues Conference (see story), added, "We looked at it and it is going to be very vague and really hands the agencies a whole lot more discretion than they would otherwise have."

Now that the waters of the U.S. rule is the "law of the land," Parrish said, one option that remains is working with members of Congress to intervene.

"There are a couple of avenues that Congress can take," he said. "They can help the agencies go back to the drawing board—they can hit the reset button and force the agencies to go back and re-promulgate—or they can actually take the step of doing a Congressional Review Act, which would really not just stop this regulation, but put a stake through its heart."

Parrish said such a review act would "basically stop the agencies from doing anything further" until Congress acted.

"Congress needs to get involved and they need to understand the implications of this," he said.

Farm Bureau continues to support S. 1140, the Federal Water Quality Protection Act, which would require EPA to withdraw the rule and to adhere to limiting principles that would ensure that any new proposal conforms to the jurisdictional limits set by Congress and affirmed by the Supreme Court. The House passed its version of the bill last month, and also passed a fiscal 2016 energy and water appropriations bill that would delay implementation of the rule starting Oct. 1.

The White House has threatened to veto the House-passed measure.

Parrish said other implications of the waters of the U.S. rule will likely play out in the courts.

"We've been approached by EPA on more than one occasion, and they say, 'Don't worry, we'll keep you out of trouble. Just come to us, ask us if you can use your land and we will be happy to tell you.' That really is appalling to most landowners," he said.

Parrish said that approach "also tees up the opportunity for local activists and really puts people at risk" from lawsuits challenging farming and ranching practices on the basis of the waters of the U.S. rule.

"It's going to be very costly," he said.

For more information about the rule, see the AFBF "Ditch the Rule" 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.