Agri-View: Debate Continues on Clean Water Ruling

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By Lynn Grooms

The U.S. Environmental Protection Agency and the U.S. Army for Civil Works have finalized the Clean Water Rule, intending that protected waters "are more precisely defined and predictably determined."

"The rule is grounded in law and the latest science, and is shaped by public input," according to the EPA. "The rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions."

EPA Administrator Gina McCarthy said, "For the water in the rivers and lakes in our communities that flow to our drinking water to be clean, the streams and wetlands that feed them need to be clean too."

Protection for many of the nation's streams and wetlands has been confusing, complex and time-consuming, she said, as the result of Supreme Court decisions in 2001 and 2006. The agency has finalized the rule to clarify protections under the Clean Water Act, after receiving requests for clarification for more than a decade from members of Congress, state and local officials, industry, agricultural and environmental groups, scientists and the public.

The agency held more than 400 meetings with stakeholders across the United States and reviewed more than 1 million public comments. The latest science was reviewed, agency officials said, including a report summarizing more than 1,200 peer-reviewed scientific studies.

U.S. House Committee on Agriculture Chairman Rep. Michael Conaway, TX-11, and Conservation and Forestry Subcommittee Chairman Rep. Glenn Thompson, PA-5, responded in a statement, saying the rule "further obscures the original intent of the Clean Water Act by significantly expanding waters subject to federal jurisdiction.

"Through hearings, letters and public forums we have repeatedly asked the administration to work with stakeholders to achieve the goals of the Clean Water Act rather than act as a schoolyard bully.

"It is ironic that the agencies' defense of this rule is that it provides clarity to producers regarding what is and is not regulated. These hollow assurances hold little comfort for farmers and ranchers who will face steep civil fines for any violation.

"This is why the House voted overwhelmingly in favor of House Rule 1732, the Regulatory Integrity Protection Act of 2015. (This legislation must be enacted) to force the EPA and the Army for Civil Works to work with states and local stakeholders to develop a new and proper set of recommendations."

National Farmers Union officials say their group also opposes expansion of jurisdiction under the Clean Water Act.

"But EPA has made genuine efforts in reaching out to agriculture stakeholders in the rule-making process -- and the final rule clearly demonstrates that the agency took the concerns of family agriculture under serious consideration," said Roger Johnson, president of the National Farmers Union.

While the final rule is not perfect from his organization's perspective, he said, it is an improvement over the proposed rule.

"The final rule puts bright-line limits on jurisdiction over neighboring waters, offering farmers increased regulatory certainty and mitigating the risk of enforcement or litigation," he said. "The final rule also provides more clarity on which ditches fall under the Clean Water Act jurisdiction, removing a gray area that has caused farmers and ranchers an incredible amount of concern."

Bob Stallman, president of the American Farm Bureau Federation, said the Farm Bureau would analyze the final rule to determine whether the EPA listened to comments farmers and ranchers submitted during the comment period.

"The process used to produce this rule was flawed," Stallman said. "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. EPA's decision to mount an aggressive advocacy campaign during the comment period has tainted what should have been an open and thoughtful deliberative process. While we know that farmers and ranchers were dedicated to calling for substantial changes to the rule, we have serious concerns about whether their comments were given full consideration."

He said the Farm Bureau will pay particular attention to how the rule treats ephemeral streams, ditches, small ponds and isolated wetlands.

Officials from the National Cattlemen's Beef Association said, "(the EPA and the Army for Civil Works ) added ambiguous language to the law that leaves regulation up to the subjectivity of individual regulators across the country.

"By law, the EPA must read and consider all comments submitted on the proposed rule. But only six months after receiving over 1 million public comments on the proposal, EPA has finalized the rule."

Association officials added there was no intention of considering the concerns of those most impacted by the rule. They said the EPA used maps of waters and wetlands that detailed the extent of their proposal. But that it wasn't until the House Committee on Science, Space and Technology was doing research in preparation for a hearing that the maps were discovered.

The National Cattlemen's Beef Association intends to analyze the details of the final rule, officials said.

"(The ruling) poses an unnecessary threat to private property owners and cattle producers across the country," they said. "The only fix is to start over with all stakeholders' input and direction from Congress."

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