Jun 25, 2014 - 5:00pm

Let's Ditch the Waters of the U.S. Rule

Senior Editor, Digital Content

That's Enough - ("Let it Go" Parody)

Should EPA have jurisdiction over a ditch in a farmer’s field that only occasionally fills with water? The Clay Family in Missouri doesn’t think so and took to YouTube with a parody of “Let It Go” from the Disney movie Frozen.

Critics of proposed definition of the “Waters of the U.S.” (WOTUS) accuse EPA and the Army Corps of Engineers of expanding their authority over bodies of water far beyond the proper scope of the Clean Water Act (CWA).

WOTUS would subject farmers, ranchers, manufacturers, home builders, local governments—nearly any property owner—to new layers of reviews and permitting. It would give federal officials more control over how landowners can use their property, and become another barrier to economic development and investment.

In The American, Blake Hurst, a Missouri farmer like the Clays, explains how expansive WOTUS is:

To quote one analysis of the proposed rule: “the preamble provides so many avenues to claim jurisdiction that very few remote and seemingly unconnected ponds, wetlands, or ephemeral washes in a watershed will ever be deemed so insignificant that the federal government leaves regulation to the states.” The EPA says it will be difficult to determine whether a gully is excluded or is an “ephemeral stream” that requires the EPA to protect it. That intentional ambiguity leaves landowners in a perpetual state of legal jeopardy. The distance between the “navigable waters of the U.S.” and ephemeral washes is the difference between common sense and our current calamity.

At a House Natural Resources Committee hearing, Patrick Tyrrel, Wyoming’s top state water regulator, told Members of Congress:

The proposed rule defines all ditches with a bed, bank and high water line as tributaries potentially subject to federal jurisdiction. This encompasses roadside, irrigation, and storm water ditches. There remains an exemption for ditches that do not contribute flow, either directly or indirectly, to water identified as navigable, interstate waters, territorial seas, and impoundments. However, the “waters are muddied” which places citizens, governments, and other entities in a position that they can no longer rely on the workable bright line rule categorically excluding ditches. This will disrupt agricultural, governmental and emergency operations.

As Blake explains, this would have a dramatic effect on how he and other farmers run their farms:

Under the CWA, a permit is needed to discharge into U.S. waters. Agriculture has always been exempt from the permitting process. But if U.S. waters now include places which are dry most of the year, then it won’t be long before the EPA requires a permit for most agricultural practices. If my best farmland, next to a small creek and planted in crops for generations, is now a U.S. water, then applying fertilizer or disturbing the soil with a planter is without doubt a discharge into EPA regulated territory. Not only that, but I might well be vulnerable to lawsuits from environmental and citizen’s groups for unlawful discharge. Federal penalties can run as much as $37,500 per day for unlawful discharges.

It would also cost more time and money to go through the CWA permitting process, according to Lawrence Martin, representing the National Water Resources Association:

[A] 2002 study reported the average applicant for an individual permit spent 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915—not counting costs of mitigation or design changes. Close to $2 billion is spent each year by the private and public sectors obtaining wetlands permits.

It’s not surprising that a broad coalition of associations told EPA and the Corps that they’ve gone too far. While not as musically-inclined as the Clay family, they seem to agree that EPA and the Corps should "Ditch the Rule."

Follow Sean Hackbarth on Twitter at @seanhackbarth and the U.S. Chamber at @uschamber.

About the Author

About the Author

Sean Hackbarth
Senior Editor, Digital Content

Sean writes about public policies affecting businesses including energy, health care, and regulations. When not battling those making it harder for free enterprise to succeed, he raves about all things Wisconsin (his home state) and religiously follows the Green Bay Packers.