EPA’s defense of a new water regulation hasn’t been smooth sailing for EPA.
Opposition to the “Waters of the U.S.” (WOTUS) rule arose the moment the EPA and the Army Corps of Engineers released it in April. The proposed regulation would cover wetlands, intermittent streams, “ephemeral” steams and man-made bodies of water like ditches, ponds, and canals. Critics, such as the U.S. Chamber, argue that WOTUS will expand federal regulatory authority beyond the scope of the Clean Water Act.
EPA Administrator Gina McCarthy hit some rough seas when she called some of these fears, “ludicrous” and “silly,” The Hill reports.
Tell that to Texas farmer John Barrett who splashed cold water on that claim:
One concern Barrett has is with his ditches. He says after a heavy rain, water will sometimes top his creek bank, overflowing into a river. He fears under the proposed changes, the ditch would then be considered a Water of the U.S. and he couldn't touch it without permission from the EPA.
"We've been farming this water way behind me for many, many years," he says. "We have had no water quality problems. And they don't need to start calling it a water of the U.S., because it's not."
Administrator McCarthy may assert that the proposed rule “clarifies” federal water regulation, but it actually muddies the waters, as Jack Field, owner of Lazy JF Cattle in Yakima, WA, explained to the House Small Business Committee in May [emphasis mine]:
After reading the proposal I can say that one thing is clear, the proposed definition is not clear. If the agencies’ goal was actually to provide clarity than they have missed the mark completely, making the status quo worse, not better. The proposal would include ditches as Water of the U.S. if a regulator can distinguish a bed, band, and ordinary high water mark. The proposal also would make everything within a floodplain and a riparian area a federal water by considering them “adjacent waters.” The result could be to eliminate the use of my summer pasture, which is located wholly in a floodplain.
In describing a stream running through his property, Field said, “It is my judgment, based on the language of the proposal that this could easily qualify as a water of the U.S., opening me and my ranch up to significant liability.”
In an interview with the Wichita Eagle, Leslie Kaufman, president and CEO of the Kansas Cooperative Council, also said that the proposed rule doesn’t make things more clear:
When you look at one definition and then another and then another, it really extends the jurisdictional reach of the EPA and the Corps (Army Corps of Engineers) to a range that is unprecedented. It is definitely broader than what the EPA claims it is, further than just a “clarification.”
The problem with McCarthy’s defense of WOTUS is that it doesn’t match up with what the rule states, Don Parrish, senior director of regulatory affairs at the American Farm Bureau Federation explained to McClatchy Newspapers:
The EPA may say “We don’t intend for that to happen,” but I can’t take that to court. The words differ in black and white from what she is saying. The words she says to the press will not be what stands up in court.
WOTUS critics have taken their concerns to Members of Congress. Prior to a hearing of the House Science Committee, state chambers of commerce sent letters to committee members explaining how WOTUS would be a barrier for farmers, home builders, and other businesses.
Chris Clark, President and CEO of the Georgia Chamber of Commerce wrote:
The result is a proposal that asserts jurisdiction over waters, including many ditches, conveyances, isolated waters, and other waters, that are presently under the jurisdiction of the states and that is inconsistent with Congressional intent and recent Supreme Court decisions.
EPA’s proposed rule will create a great deal of uncertainty for our business members, and could put potential projects and investments in a holding pattern due to the uncertainty of what would be covered jurisdictionally and who would or would not need a permit.
Benjamin Brockschmidt, Director Federal Affairs for the Illinois Chamber of Commerce added:
This proposed rule will add to the already unprecedented level of uncertainty our members face from the dozens of new rules and regulations being written by the federal government. Very simple, if enacted, the “Waters of the United States” rule will add to the uncertainty of what would be covered jurisdictionally and who would or would not need a permit.
Judge for yourself whether these arguments are “ludicrous” or “silly,” or whether they’re based on real world experience and legitimate worries about federal regulatory overreach.
Follow Sean Hackbarth on Twitter at @seanhackbarth and the U.S. Chamber at @uschamber.