Sep 26, 2014 - 2:30pm

Lots of People Want to Ditch Waters of the U.S. Rule. Here’s Why.

Senior Editor, Digital Content

EPA staff is getting an eyeful on social media today from opponents of the proposed Waters of the U.S. (WOTUS) rule the agency developed with the Army Corps of Engineers. The American Farm Bureau is leading a Day of Action to inform the public about this latest attempt at expanding federal regulatory power.

Activists are taking to Facebook and Twitter with messages telling EPA to #DitchTheRule, and the Missouri Farm Bureau is taking things to another level with its #DitchCam that spotlights some of EPA’s WOTUS claims with the help of a few mythical people and creatures.

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The deadline for submitting public comments on WOTUS is October 20.

Even though WOTUS was released in April and its had months to explain what it's about, EPA still doesn’t understand why many people are up in arms about it. “The intent is not to make farmers’ lives harder,” an EPA official recently told Slate writer Boer Deng.

Here’s a hint: It’s not the intent that matters; it’s how the rule is written and interpreted by regulators. And the proposed rule wouldn’t just be hard on farmers, it would be hard on businesses, states, and local governments.  Federal agencies would make local land use decisions, rather than state and local authorities.

The American Farm Bureau looks at the fine print of the proposed WOTUS rule. First, on how the rule only makes things as clear as mud:

[T]he rule doesn’t CLARIFY anything except that almost any low spot where rainwater collects could be regulated. The proposed rule defines “tributaries” and “adjacent” in ways that make it impossible for a typical farmer to know whether the specific ditches or low areas at his farm will be “waters of the U.S.”—but the language is certainly broad enough to give agency field staff plenty of room to find that they are!

J.D. Strong, executive director of the Oklahoma Water Resources Board, agrees that WOTUS hasn’t made things clearer:

It throws the door open for a lot more features to be considered “waters of the U.S.” than there were in the mix before. They’ve taken an already fuzzy line of jurisdiction and simply moved it from one place to another, but it’s no less fuzzy before we started this exercise.

As Zach Bader of the Iowa Farm Bureau writes, such lack of clarity in the definition will leave a lot of discretion to those who will enforce it:

And while I trust that EPA’s spokespeople are genuine, I know they won’t be the ones trying to interpret the vague rule during an actual inspection. And I’m curious if the next wave of EPA workers who inherit this rule will honor EPA’s “gentlemen’s agreement” not to regulate yards and farms, or if they’ll read and enforce the written word differently.

If the latter is true, you may not be able to weed and feed your lawn, spray for bugs, landscape with treated lumber and wood chips, fill in a low area with soil, or even dig a hole without a “dredge and fill” or “NPDES” permit.

Next, the American Farm Bureau takes on EPA’s claim that WOTUS will maintain “exemptions and exclusions” that farmers already have:

It has to! Congress provided those exemptions in the statute, and the agencies can’t take them away by regulation.

The categories of exemptions are still there, but because of the expansion of jurisdiction over more small, isolated wetlands and land features like ditches and ephemeral drains, fewer farmers will benefit from the exemptions. The exemptions for activities occurring in “waters of the U.S.” have been interpreted by the agencies to be ridiculously narrow (e.g., you can plow and plant in a wetland, but only if you have been farming there since 1977, and only if you do not alter the hydrology of the wetland, and you cannot apply fertilizer or herbicide there without an NPDES permit).

Farmers like those who grow beer supplies are “hopping mad” over the proposed rule, but other industries also worry that WOTUS will make it even harder to do business in America. Missouri homebuilder Tom Woods told the House Small Business Committee, “The only winners are the lawyers, as this rule will certainly lead to increased litigation.” And the golf industry fears that WOTUS will keep golf course managers from fighting “routine erosion” and maintaining courses.

Perhaps, the crux of EPA’s problem is it thinks WOTUS criticisms are “ludicrous” and “silly?” Taking action through social media and by submitting a comment will educate the agency.

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.