Proposed 'Waters of the U.S.' Rule Met with Strong Opposition

Since being disclosed on April 21 of this year, Obama Administration’s proposed “Waters of the U.S.” rule has ignited a firestorm of opposition, particularly from farmers and ranchers. Although the divide over the rule appears to be as wide as ever, there are no indications that the rulemaking will not proceed.

By Patrick Crow

Water associations may be leery about the Obama Administration's proposed "Waters of the U.S." rule, but farm groups are livid.

The Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers said the regulation would clarify their Clean Water Act (CWA) powers in the wake of two U.S. Supreme Court decisions (see " Debate Continues over Proposed ‘Waters of the U.S.' Rulemaking," WW, August 2014).

EPA Administrator Gina McCarthy has said that the proposed rule would not expand the agencies' jurisdiction to waterbodies far upstream from navigable waterways, such as watery ditches in farmers' fields.

Since being disclosed on April 21 of this year, however, the rule has ignited such a firestorm of opposition, particularly from farmers and ranchers, it is difficult to envision that it will be issued unscathed. As a barometer of public hostility, EPA had received 207,700 comments on the proposed rule by late August. The comment period is due to close on Oct. 20, 2014.

Congress is doing what it can to block the rule. Appropriations committees in the Republican-controlled House of Representatives have denied EPA any funds in the fiscal 2015 budget to advance the rule. That would be for naught if legislators can't agree on a budget for EPA, which seems likely.

The House Transportation and Infrastructure Committee has accused EPA of "regulatory overreach" and reported out a bill banning the rule. However, that legislation would be dead on arrival if it ever advances to the Democratic- controlled Senate.

Senate appropriations bills didn't deny funding for the regulation, but there is dissatisfaction. Thirty Republican senators have urged a funding ban.

Sen. Debbie Stabenow (D-Mich.), who chairs the Senate Agriculture Committee, and a dozen other senators have warned EPA that it should ensure the rule has no "unintended effects on agriculture and on the conservation practices currently used by many of our nation's farmers and ranchers."

The U.S. Chamber of Commerce is leading a coalition of associations opposing the rulemaking. It claims the agencies ignored the Regulatory Flexibility Act by failing to examine the rule's impact on small businesses and local government.

"Small governmental jurisdictions, such as small towns, counties, water systems, irrigation districts, transportation departments, and municipal utilities, will be profoundly impacted by the shift from state and local control of water-related land uses to federal control," it recently said.

The National Association of Counties (NACo) is concerned that expanded federal oversight would drain local budgets without providing a proven environmental benefit.

"If this goes through, county governments will face increased costs. We will have delayed projects," warned NACo Executive Director Matthew Chase.

NACo spokesman Brian Namey said, "We think the EPA was attempting to add clarity, but what we've seen is more confusion around the rule."

Farm groups, particularly the American Farm Bureau Federation, are aggressively opposing the "Waters of the U.S." initiative. Alleging that the administration wants to extend federal controls all the way upstream to the watery ditches in farmers' fields, it has named its campaign "Ditch the Rule."

Although the National Farmers Union (NFU) originally supported the regulation, it is now skeptical.

NFU President Roger Johnson said, "If the proposed rule is to accomplish its slated purpose, most questions about which waters are covered and which are not should be answered clearly and concisely. Failure to do so will lead to more resentment in rural America."

The attorneys general of 15 states with farming and ranching sectors have written EPA complaining that the agency has "impermissibly narrowed the scope of ‘normal farming' activities that have historically been considered exempt" from regulation.

McCarthy has staunchly defended the regulation in meetings with senators and farm groups.

EPA has also taken the unusual step of creating a "Ditch the Myth" website to rapidly respond to criticism. The web page stresses that the initiative would not protect any waters that were not previously under CWA jurisdiction and that it would preserve all historical exclusions and exemptions.

Although the divide over the rule appears to be as wide as ever, there are no indications that the rulemaking will not proceed. After EPA staff reviews the public comments and receives a study from a scientific advisory panel, it is expected to continue the rulemaking process next year.

About the Author: Patrick Crow covered the U.S. Congress and federal agencies for 21 years as a reporter for industry magazines. He has reported on water issues for the past 15 years. Crow is now a Houston, Texas-based freelance writer.

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