Congress tries to rein in EPA ‘waters’ proposal

The proposed federal "waters of the United States" rule, which agricultural groups say would increase the authority of government agencies and redefine and expand the scope of waters protected under the federal Clean Water Act, was at the center of debate in Washington, D.C., last week.

A bipartisan group of senators introduced the Federal Water Quality Protection Act that requires the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to address flaws in the existing proposed rule and craft a new proposal. A separate bill in the House of Representatives, known as the Regulatory Integrity Protection Act of 2015, was introduced earlier and is expected to move to the House floor for consideration before the Memorial Day recess.

Agricultural organizations including Farm Bureau and other groups say the proposed waters of the U.S. rule, released last spring, would unreasonably expand jurisdiction over farmland for both the EPA and the Army Corps.

Kari Fisher, a California Farm Bureau Federation associate counsel who has been following the issue, said Congress is actively pursuing legislation to stop the proposed rule or change its contents.

"As of last week, bills were introduced in the Senate and the House. Like the House bill, the Senate bill calls for EPA to withdraw the rule," Fisher said. "The Senate bill, however, is more specific in that it ‘strongly guides’ EPA in how to redraft the rule and sets out principles the agency must follow, such as requiring additional (economic) analysis."

The Senate version also directs agencies to issue a revised rule that does not include features such as isolated ponds, ditches, agricultural water, stormwater, groundwater, floodwater, municipal water supply systems, wastewater management systems, and streams without enough flow to carry pollutants to navigable waters.

The American Farm Bureau Federation supports both the Senate and House measures, and called on Congress last week to act swiftly, before the rule is final, so agencies can rewrite the rule to ensure it is practical and addresses the concerns of farmers, ranchers and business owners.

"Tens of thousands of farmers, ranchers and landowners have spoken out, but EPA has yet to fully acknowledge the proposal’s potential impact on everyday farming activities," AFBF President Bob Stallman said.

In a letter sent to all members of Congress in support of the House bill, Stallman said the Regulatory Integrity Protection Act represents an opportunity for Congress to take "the first important step toward resolving this issue fairly."

"Our members overwhelmingly oppose this rule," he said. "It is a bad rule for farmers. There is no question about that. Anyone who alleges the opposite either misunderstands the rule or misunderstands farming."

Farm Bureau said the agencies’ proposed rule improperly extends federal regulation to isolated waters and, in cases, regulates land use under the guise of the waters of the U.S. rule. AFBF said it is working to generate bipartisan support for legislation requiring agencies to withdraw the proposed rule or any potential final rule within 30 days of enactment, and charging the agencies with developing a new proposed rule.

For its part, the Obama administration reinforced its support for the proposed rule, saying the president’s senior advisers would recommend that the president veto legislation that would "derail current efforts to clarify the scope of the CWA."

EPA sent its waters of the U.S. rule to the Office of Management and Budget last month for interagency review, which is the final step before release of the final rule. EPA officials have long said that they plan to finalize the rule this summer.

AFBF has asked state Farm Bureaus to contact their congressional delegations to ask that they vote yes on the House bill and to vote against any potential weakening amendments.

If legislation does not pass and EPA moves forward with a final rule, Stallman said the likeliest result would be landowners "being forced to engage in expensive litigation to protect their rights."

Learn more about the issue at http://ditchtherule.fb.org/.

(Christine Souza is an assistant editor of Ag Alert. She may be contacted at [email protected].)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item