EPA in hot water over proposed CWA rule

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Hot water, boiling water, steam Despite a recent public relations campaign through Missouri farm country to attempt to calm the waters about the proposed changes to the definition of “Waters of the United States” under the Clean Water Act, EPA continues to take heat from farmers and ranchers, and lawmakers.

After initially calling the proposal “ag friendly” and agreeing with EPA that it “clarifies Clean Water Act jurisdiction, maintains agricultural exemptions and adds new exemptions, and encourages enrollment in USDA conservation programs,” the National Farmers Union last week sent a letter to EPA Administrator Gina McCarthy seeking more information about what water and land features will fall under federal jurisdiction if the rule is finalized as it is proposed.

After a conference call between Administrator McCarthy and the NFU board of directors, NFU President Roger Johnson says a number of questions were raised.

“The board asked for clarity surrounding some of the definitions in the proposed rule. The general sense was that the proposed rule created less clarity, not more as intended,” Johnson said.

Specifically, NFU asked for more information related to jurisdiction of wetlands, vernal pools, intermittent waters and ditches, the expected process and timeline for making determinations, locations around the country where increases in jurisdictional acres are expected, and the definition of “standard farming practice.” In the letter, Johnson said failure to reduce confusion and anxiety surrounding jurisdiction will “lead to more resentment in rural America.”

NFU was not the only farm group raising concern with the proposal last week. The American Farm Bureau Federation, which has been a vocal opponent of the proposal with its Ditch the Rule campaign, responded to a June 30 blog post by Nancy Stoner, EPA acting assistant administrator for water, titled “Setting the Record Straight on Waters of the U.S.” AFBF issued a document challenging Stoner point-by-point on claims made in the blog post.

For example, Stoner said in the blog that “The proposed Waters of the U.S. rule does not regulate new types of ditches, does not regulate activities on land, and does not apply to groundwater.”  AFBF countered saying “Current rules do not include ditches. Agencies have informally interpreted rules to include ditches as “tributaries.” We disagree! Now, the new rule would categorically define almost all ditches as “tributaries” (79 Fed. Reg. 22203-04). With regard to the claim about activity on land, AFBF said this, “Yes, the proposed rule would regulate activities on land that is usually dry but where water channels and flows or ponds when it rains. The rule calls these areas “ephemeral streams,” “wetlands” and “seasonal ponds” – but to most people, they look like land.”   

In similar fashion, the National Cattlemen’s Beef Association didn’t miss an opportunity to pile it onto the agency as NCBA Environmental Counsel Ashley Lyon responded to statements made by Administrator McCarthy during her time in Missouri.

McCarthy, in her opening comments, said some of the concerns about the proposal are legitimate while others are “ludicrous.” Specifically, she said “some people say that EPA is going to be regulating small unconnected waters including puddles on lawns, driveways and playgrounds. Now, that’s just silly. This proposal is all about protecting waters that science tells us have a significant, can have a significant, impact on downstream water quality. That’s what it is, no more and no less than that.”

McDonald responded by requesting the agency put that statement in writing. “Your significant nexus definition allows ANY connection to qualify as SIGNIFICANT, meaning that a puddle in a floodplain that might be connected through groundwater to a navigable water COULD very well be jurisdictional. That’s what the words on paper mean,” McDonald said.

Meanwhile, on Capitol Hill, legislation has been introduced in both the Senate (S. 2496, Protecting Water and Property Rights Act of 2014) and the House of Representatives (H.R. 5078, Waters of the United States Regulatory Overreach Protection Act) to stop the rule from being finalized.

The agency will continue accepting comments on the proposed rule until October 20, 2014. Comments can be submitted at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OW-2011-0880-0001. As of July 21, 204,693 comments have been submitted through the online rulemaking system. 

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kansas  |  July, 23, 2014 at 11:34 PM

I've not seen much said about the EPA's "spokesmodel's", Stoner's, longtime affiliation with one of Modern agricultures most serious enemies, the Natural Resources Defense Council. Why is no one grinding the point home that the EPA is a puppet agency of eco-extremist advocacy groups, and largely staffed by former members of the same?

Dr Dan    
Ohio  |  July, 27, 2014 at 07:22 PM

Remember a rule and its interpretation is easily changed by these people so do not be satisfied when they say a rule means such and such.

ks  |  August, 15, 2014 at 03:33 PM

Dr. Dan; Historically its been the courts that have "interpreted" the rules. If EPA changes a rule it has to be placed on public notice.

ks  |  August, 15, 2014 at 03:44 PM

Mary, I have no horse in this race, but I find it ironic how the ag industry has responded to EPA's efforts to make the age old question of: What is waters of the US? more black and white. Whether the industry realizes it or not alot of what EPA proposed would save the industry from citizen suits which can be brought by any TD&H when a producer is working around areas where water exists, can flow, or can puddle. So if the industry wants to keep on the same gray path for many of the activities part of daily production; and be subject to the whim of any TD&H; . . . Instead of working with EPA to take some of the ambiguity out of a massive gray question created in 1972. . . that is what the industry will get

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