Commentary: Setting the record straight on 'Waters of the U.S.'
Americans expect straight talk from their government. If our government says something, you ought to be able to take it to the bank, as the saying goes.
The Environmental Protection Agency is not meeting that expectation. Instead of making things clear when it comes to how the proposed “Waters of the U.S.” rule would affect farmers and other landowners, the EPA is muddying the waters.
Two Supreme Court rulings have limited EPA’s and the Corps of Engineers’ authority under the Clean Water Act to waters that are navigable or have a “significant nexus” to navigable waters. EPA claims the rulings “complicated” the permitting process. The reality is not all that complicated: The agencies dislike the rulings and are simply trying to write regulations that allow them to do what the Supreme Court has said they cannot do—regulate nearly all waters.
EPA has said that it only wants to bring “clarity and consistency” to the process. That sounds reasonable. Good talking point. The only problem is the statement does not reflect what is in the proposed rule. The regulation will automatically regulate countless small and remote so-called “waters” that are usually dry and, in fact, look like land to you and me. This is far more than a “clarification.” It is a dramatic expansion of federal power. Expanding the federal government’s jurisdiction under the guise of bringing clarity and consistency to the process is the opposite of straight talk.
We Read the Fine Print
When regulators show up on farms and ranches, they won’t be looking back at talking points to decide whether farming requires an expensive federal permit. They will use the regulation. So let’s take a look at the fine print.
Ditches—The rule regulates ditches as “tributaries.” EPA claims that the rule would exclude ditches, but the so-called ditch exclusion only covers ditches dug entirely in “uplands.” The rule doesn’t define “uplands” (so much for clarity), but we know that uplands are not wetlands, and most ditches are “wetland” at some point along their length. That’s just one reason Farm Bureau believes the narrow ditch “exclusion” will be meaningless.
Farming exemptions—EPA offers assurances that all farming and ranching exemptions are being preserved under the rule. But those exemptions are extremely limited when it comes to activities in jurisdictional waters. That’s why the exemptions will not protect most ordinary farming and ranching from permit requirements if ditches and low spots in farm fields are regulated, as they will be under the proposed rule.
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