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Comments Finalized on EPA's Water Rule

Many agricultural groups called for full rule withdrawal of EPA's water rule while NFU believes changes can be made to salvage proposal.

It has been seven months since the Environmental Protection Agency first proposed the long-anticipated waters of the U.S. rule which sets out to clarify what are deemed navigable waters and under the jurisdiction of the federal government in the Clean Water Act.

Nov. 14 marked the end of the official comment period on the rule and now the industry waits to see if any changes will be made to the proposal. Nearly 500,000 comments were received by EPA through the rulemaking process and many of the major agricultural groups as well as legislators voiced concerns or asked for further clarification on the rule.

Many of the main commodity groups called for a withdrawal of the water rule including the National Assn. of State Departments of Agriculture, American Farm Bureau Federation, National Cattlemen’s Beef Assn., National Pork Producers Council, National Chicken Council, U.S. Poultry and Egg Assn., National Turkey Federation and the American Soybean Assn.

AFBF has been one of the most outspoken opponents of the rule and started a campaign to “Ditch the Rule.” A total of 146 agricultural groups joined in the AFBF-led comments.

AFBF contends there’s no way to know which areas are regulated and, most importantly, which are not. “That makes farmers, ranchers and other businesses and land owners vulnerable to arbitrary agency enforcement and even citizen lawsuits,” AFBF president Bob Stallman said.

The rule was supposed to bring clarity to what are and what are not water bodies regulated by the federal government, but it fails to do that, said NPPC president Dr. Howard Hill. “While pork producers appreciate the efforts of EPA and the Corps of Engineers to define their jurisdiction, the proposed rule will create many more problems than it theoretically will solve.”

Under the proposed rule, tributaries, impoundments of tributaries, wetlands and wet areas “adjacent” to those waters are without exception defined as WOTUS; ditches, with two exceptions, are considered tributaries and, therefore, categorically WOTUS, regardless of the quantity, duration or frequency of water flowing in them; and determinations on whether “other” waters are WOTUS would be made on a case-by-case basis, NPPC’s comments explained.

In the comments filed jointly by the poultry organizations, they told EPA that while the processes and inter-relationships identified in the connectivity report provide mechanisms to establish potential chemical, biological and physical ties between waters, the idea of a universally applicable mechanism for every water or drainage feature that exists on the landscape “lacks any degree of scientific robustness.”

“Given the financial and potential criminal liabilities associated with violating the CWA, the connectivity of an area to a navigable water is best established on a case-by-case basis. This vague concept of connectivity cannot be applied universally to all areas and navigable waters, thereby defeating the agencies' stated purpose of avoiding case-by-case determinations for waters of the U.S," the poultry groups said.

In its comments, soybean growers pointed out the association's key problems with the ruling, based on four major inconsistencies, including the incorrect application of the "nexus" test, significant confusion around the issue of tile drainage, questions regarding jurisdiction over prior converted cropland, and discrepancies concerning the amount by which the EPA's jurisdiction would actually expand under the new definition.

The National Corn Growers Association commented that the proposal creates more uncertainty and confusion and actually are not consistent with the two most recent Supreme Court decisions. “The new, never before articulated definition for tributaries, which works in tandem with a definition of adjacent waters that is also changed, the status of farmers’ operations and their liabilities under the CWA are now in question,” NCGA’s comments said. “The proposal would or could make jurisdictional more than five million miles of remote waters and drainage features, innumerable wet areas in farm country associated with those drainage features, and at last count approximately 25 million acres of remote, isolated wetlands in crop, pasture and range land.”  

NASDA – representing the commissioners, secretaries and directs of the state departments of agriculture in all 50 states – said it was very concerned EPA proposed the rule without robust prior engagement with state and local authorities.

“The proposed rule is ill-conceived and exceeds the legal and statutory boundaries of the CWA. Rather than clarify the intent of Congress and the Supreme Court, the proposed rule would add complexity and uncertainty, disrupt the timely use of FIFRA-registered pesticide products, and cause significant adverse economic impacts to state departments of agriculture and other agencies. By creating confusion and the potential for significant legal jeopardy, the proposed rule would result in costly delays that have not been adequately considered by the agencies,” NASDA said.

Feasible fixes

While many agricultural groups have been very opposed to any version of the current proposed water rule, the National Farmers Union has been more open to making changes that can provide regulatory certainty while not increasing CWA jurisdiction.

NFU president Roger Johnson’s comments called on EPA to include a definition of “tributary” that clarifies, without increasing CWA jurisdiction as well as a bright-light rule for “adjacent waters” which would reduce the need for case-by-case determinations. NFU also called for an exclusion of ditches that do not connect with wetlands, riparian areas, floodplains or other waters and ditches without perennial flow from CWA jurisdiction.

“If NFU’s comments are given proper consideration, the final rule will allow the regulated community the certainty it needs to conduct its business free from fear of undue regulatory interference and without sacrificing the agencies’ ability to protect the United States’ water resources,” Johnson said.

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