Federal regulators have stirred up a hornets nest with their proposed expansion of federal power over bodies of water.
The proposed “Waters of the U.S.” (WOTUS) rule would expand EPA’s and the Army Corps’ of Engineers authority over bodies of water beyond the scope of the Clean Water Act (CWA). It would give federal officials more control over how farmers, ranchers, manufacturers, home builders, and local governments can use their property and subject it to new layers of costly reviews and permitting.
This threat has motivated resistance. For example, Nebraska farmers have organized in opposition:
In a show of solidarity, seven Nebraskan farm and ranch groups on Tuesday announced a coalition dubbed Common Sense Nebraska formed to fight the rule, which they called a power grab by the EPA.
“What the EPA is proposing would be very disruptive to farming and ranching,” Nebraska Farm Bureau Federation President Steve Nelson said. “What this proposal does goes well beyond what is necessary to control water quality, and it really begins to be a land control issue. It would affect every possible thing farmers and ranchers could do on the land.”
Nelson said the rule would erode local control and lead to federal regulation of everything from building fences to crop rotation to application of fertilizer and pesticides.
“We’re making a strong effort here to help people understand the best we can what the rule says and encouraging everyone to get involved here and comment on the rule,” he said.
An Arkansas county government is also resistant to the water rule:
The Baxter County Quorum Court passed a resolution Tuesday night expressing opposition to the Environmental Protection Agency and Corps of Engineers proposed rule to clarify, or according to others expand, the definition of navigable waters in the Clean Water Act.
The EPA has said that the proposed rule does not protect any new types of waters that have not historically been covered under the Clean Water Act.
"What we're reacting to is some of the summations they've come up with," Pendergrass said. "Some of the definitions are not clear."
According to the EPA, the purpose of the rule is to provide clarity as to what "navigable waters" are.
"It's a play on words, it's the legal jargon that they use, and it allows them to interpret it as to what navigable waters is under the Clean Water Act," Pendergrass said.
Pendergrass said he has not spoken to the EPA. He said that the resolution is what voices his concern and he intends to ensure federal delegation understand his position. He said he thinks several counties are releasing similar resolutions and that it's a statewide effort.
"Because our economy is based upon the waters we have in Baxter County and surrounding areas, we're as sensitive to environmental damage to our water as anybody," Pendergrass said.
Opposition like this has put EPA on the defensive. It’s arguing that the proposed rule is “not a sea change” and will not force farmers to apply for federal permits to work their land. In a blog post, Nancy Stoner, EPA’s Acting Assistant Administrator for Water, writes:
The proposed Waters of the U.S. rule does not regulate new types of ditches, does not regulate activities on land, and does not apply to groundwater. The proposal does not change the permitting exemption for stock ponds, does not require permits for normal farming activities like moving cattle, and does not regulate puddles.
Instead, the proposed rule “will bring clarity and consistency to the process, cutting red tape and saving money.”
However, EPA’s ambiguous language appears to leave the door wide open for a massive expansion of its regulatory authority. In her blog post, Stoner writes that the Clean Water Act [emphasis mine]
didn’t just defend the mighty Mississippi or our Great Lakes; it also protected the smaller streams and wetlands that weave together a vast, interconnected system. It recognized that healthy families and farms downstream depend on healthy headwaters upstream.
WOTUS critics fear that EPA will use this interconnectedness argument to claim authority over ditches and fields that occasionally have standing water, as Sandy Bauers of the Philadelphia Inquirer reports:
The fields on Mark Scheetz's 22-acre family farm in West Rockhill Township, Bucks County, have ditches, which prevent soil erosion during heavy rains. Ninety percent of the time, they're dry. But what if the EPA came in and said he couldn't farm within 150 feet? He'd still have to maintain land he couldn't use and pay taxes on it.
"The real concern here is that farmers won't find out which wet spot, which pond, which gully, which ditch is considered to be a water of the U.S. until the EPA or an environmental group brings a legal action against the farmer," said John Bell, government affairs counsel for the Pennsylvania Farm Bureau. "Farmers deserve a lot more clarity than that."
A broad coalition of agricultural, construction, manufacturing, housing, real estate, mining, and energy, groups have united to oppose this expansion of federal regulatory power. Now we see that local opposition has sprouted. They all agree that EPA and the Army Corps of Engineers should “Ditch the Rule.”
Follow Sean Hackbarth on Twitter at @seanhackbarth and the U.S. Chamber at @uschamber.