EPA proposes changes to Clean Water Act

In late April, the U.S. EPA and U.S. Army Corps of Engineers jointly released a proposed rule to clarify protection under the Clean Water Act for streams and wetlands. The proposal would expand the definition of the term “waters of the United States” under the Clean Water Act, potentially allowing EPA and the Corps to regulate virtually every area of ground that gets wet or has flow during rainfall. The change would expand regulatory authority to many land features 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, according to the California Farm Bureau Federation (CFBF).

“As an industry, we support efforts to protect water quality and to use precious water resources efficiently. We’ve made great strides in this area,” says Joe Bischoff, regulatory and legislative affairs director at AmericanHort. “However, EPA proposes a drastic expansion of its regulatory jurisdiction that has the potential to affect land use, business practices and property values in a significant way. These impacts would not be limited to those near navigable waterways or associated wetlands. The EPA’s proposed new definition of ‘Waters of the U.S.’ would give them authority to regulate nearly all streams, ponds and ditches – natural and man-made, even ephemeral – throughout the U.S.”
 

Affected acreage questioned

While EPA’s analysis of the proposal determined there would be only 1,300 additional acres that would be regulated under the Clean Water Act, American Farm Bureau Federation (AFBF) analysis shows the proposed rule could affect more than 106 million acres, and that’s looking exclusively from a wetlands perspective. The hundreds of millions of acres impacted could include cropland, pastureland, Conservation Reserve Program acreage, rangeland, forestland and other agricultural lands, says AFBF economist Veronica Nigh. 

“There aren’t going to be only a few growers who have to deal with the proposed rule. It’s extensive, and it’s going to affect almost all farmers and ranchers in the United States,” says Nigh, who noted the wetlands expansion is just one of many new definitions Farm Bureau is concerned about in the proposed rule. “Next, we’ll start measuring how other land categories will be affected because this incredible scope of the implication of wetlands is just the tip of the iceberg.”
 

“Ditch the Rule”

AFBF President Bob Stallman describes the rule as an end-run around congressional intent and rulings by the U.S. Supreme Court, alike.

“Congress and the courts have both said that the 50 states, not EPA, have power to decide how farming and other land uses should be restricted. It’s time to ditch this rule,” Stallman says.

To help affected parties express the need for EPA to “Ditch the Rule,” the Farm Bureau has launched a website at ditchtherule.fb.org.

The EPA says the proposed rule exempts farmers, including nursery operations. However, the AFBF says the exemptions are extremely narrow. On its “Ditch the Rule” website, the AFBF says the exemptions “only apply to one part of the CWA, the section 404 ‘dredge and fill’ permit program. The rule provides no protection from enforcement over other activities, such as weed control, fertilizer applications and any number of other common farm activities that may trigger CWA liability and permit requirements.”

In addition, a farmer has to have been farming continuously since 1977 to benefit from the exemptions, according to the AFBF.

The AFBF also says the rule narrows existing exemptions by tying them to mandatory compliance with what used to be voluntary Natural Resources Conservation Service (NRCS) standards.

“Farmers previously could undertake these practices as part of their normal farming activities; now, those activities must comply with NRCS standards or else the farmer risks CWA enforcement,” reports the AFBF on the Ditch the Rule website.
 

The House speaks up for small businesses

On May 23, the House Committee on Small Business sent a letter to EPA Administrator Gina McCarthy and Assistant Secretary of the Army Jo-Ellen Darcy requesting the agencies withdraw the proposed rule. In the letter, the committee says the agencies “have not fulfilled their obligations under the Regulatory Flexibility Act (RFA) … to conduct outreach to and assess the impacts of the proposed rule …” The committee also writes that it’s “concerned the proposed rule could have a significant economic impact on small businesses, yet the agencies have not assessed those consequences as required by the RFA.

“We believe the agencies should withdraw the proposed rule and conduct the required small business outreach and analysis before proceeding with the rulemaking,” the letter reads.

As an alternative, the committee requests that the public comment period for the proposed rule be extended by an additional 90 days “to ensure small businesses have adequate time to review and provide input on this proposal.”

At press time, the comment period was slated to end July 21, 2014.

View the proposal and comment instructions at https://federalregister.gov/a/2014-07142.

At press time, the EPA nor the Corps had responded to the committee’s requests. And on May 29, the committee conducted a hearing about how small businesses would be affected by the proposed rule.

“This EPA ‘Waters of the United States’ proposed rule is a classic example of regulatory overreach,” says Rep. Sam Graves, Small Business Committee chairman. “This rule will impose significant additional costs and burdens on small businesses to comply with Clean Water Act requirements for thousands of small streams, ditches, ponds, and other isolated waters, some of which may have little or no connection to traditionally navigable waters that the Act was designed to protect. This is a power grab that cannot be justified.”
 

EPA claims “clarification” needed

In a released statement, the EPA says, “The proposed rule clarifies protection for streams and wetlands. The proposed definitions of waters will apply to all Clean Water Act programs. It does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction.”

EPA says its new rule clarifies the scope of the Clean Water Act. However, EPA’s “clarification” is achieved by categorically classifying most water features and even dry land as “waters of the United States,” according to the AFBF.

In late May, the California Farm Bureau Federation met with EPA Administrator Gina McCarthy. During the meeting with CFBF officials, McCarthy said she “is interested in understanding the concerns of agriculture and that she would like to maintain an open dialogue with those who would be affected by the proposed rule.”

CFBF President Paul Wenger wants the EPA to visit California farms and ranches for a better understanding of how this proposal affects growers.