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EPA releases final Waters of the U.S. rule

EPA releases final Waters of the U.S. rule
EPA/Corps of Engineers release final Waters of the U.S. rule. Claim changes made to accommodate agriculture concerns. Skeptics remain unconvinced, claim government overreach.

With a chorus of disaffection playing in the background, the EPA and Corps of Engineers have released their long-awaited Waters of the U.S. (WOTUS) rule.

The release comes shortly after House Resolution 1732 — which would quash the EPA rule — passed the House on a 261-155 vote and was sent to the Senate. If the legislation passes the Senate, President Obama says he will veto it.

Critics of the EPA rule contend it would extend federal control, under the Clean Water Act, over navigable waters to include things like field-side ditches. The EPA’s original proposal was extremely controversial and received over a million comments from the public. Farmers have been among the most vociferous opponents of the rule, many calling it a gross overreach to expand government oversight.

The EPA says the latest iteration of the rule makes it clear that most existing agricultural exemptions from the Clean Water Act will be preserved.

Despite such assurances, many still aren’t buying.

“I am disappointed but not surprised that the EPA has decided to move forward with a rule that would increase confusion and red tape,” said Minnesota Rep. Collin Peterson, ranking member of the House Agriculture Committee. “Farmers, ranchers, local communities and businesses all expressed concern with the negative impacts of this rule. Despite that, EPA either wasn’t willing to listen or simply just does not get it.

“I am committed to working with my colleagues on both sides of the aisle to explore all available options to ensure these arbitrary and subjective regulations never go into effect.”

Arkansas Rep. Rick Crawford, who has repeatedly expressed displeasure with the EPA’s approach, said the rule’s language remains opaque. “Despite an overwhelming number of public comments requesting a significant modification or complete revocation of this rule, the administration has decided to ignore both the opinion of Congress and the American people by pushing forward with this large expansion of federal authority for small and seasonal bodies of water already regulated at the state level. The ambiguous wording of the WOTUS rule could subject landowners, farmers, and ranchers to jurisdictional challenges and unprecedented levels of compliance costs.”

While still reviewing the final rule, Andrew Grobmyer, Arkansas Agricultural Council executive vice president, said the organization remains “opposed to the EPA’s efforts to dramatically expand its regulatory authority. With their efforts to redefine waters to be regulated by the Clean Water Act, they’ve created an enforcement and compliance nightmare for U.S. citizens and placed a drag on our economic productivity. Private landowners and farmers whose businesses, livelihoods, and personal health depend on clean water, clean air, and healthy soils do not need more expansive government regulations that add risk to their operations. This new regulation, if not mitigated by Congress or the courts, will undoubtedly cause new compliance burdens for agriculture, place farmers at risk of lawsuits, and make it more costly to our farmers to produce the food and fiber the world demands.”

Wade Cowan, American Soybean Association president, called for the EPA to allow the organization to comment on the rule revisions. “We haven’t been given an opportunity to comment on EPA’s revision of the rule. We voiced strong opposition to the original version, and while we are encouraged by the agency’s willingness to revisit the rule and potentially address farmer concerns, we are very much in a ‘trust but verify’ mode. ASA needs to establish that the rule does not affect everyday soybean farming operations, and we are now in the process of making that determination. If we find that the rule does not live up to the promises made by EPA, we must have an opportunity to submit comments to the agency to that effect.”

More comments

Among other groups commenting:

• The National Corn Growers Association

“We especially want to ensure that the broad promises made in the EPA press release are carried out in the text of this comprehensive rule,” said Chip Bowling, NCGA president.

“With the earlier round of proposed rules, NCGA was concerned that the earlier proposed rule represented a significant expansion of federal Clean Water Act jurisdiction relative to anything that has ever been in rulemaking before. We especially will look closely at how on-farm ditches, ponds and puddles are treated in the rule.”

• National Farmers Union

“NFU’s policy opposes any expansion of jurisdiction under the Clean Water Act, but EPA has made genuine efforts in reaching out to agriculture stakeholders in the rule-making process and the final rule clearly demonstrates that the agency took the concerns of family agriculture under serious consideration,” said Roger Johnson, NFU president. “While the rule is not perfect from our perspective, the final rule is an improvement over the proposed rule.

“The final rule puts bright-line limits on jurisdiction over neighboring waters, offering farmers increased regulatory certainty and mitigating the risk of enforcement or litigation. The final rule also provides more clarity on which ditches fall under the Clean Water Act jurisdiction, removing a gray area that has caused farmers and ranchers an incredible amount of concern.”

• Center for Rural Affairs

“The EPA and Army Corps of Engineers did as promised, they considered the more than one million comments that they received on the rule, they addressed concerns, refined and improved the rule,” said John Crabtree of the Center for Rural Affairs. “We are encouraged by the refinements and clarifications that EPA and the Army Corps have undertaken in this process, and encouraged to see better Clean Water Act enforcement poised to move forward.

“Perhaps most importantly, this rule was shaped, and improved, by public input. EPA and the Army Corps asked Americans to weigh in on this rule, and over one million of them did so. That process will allow the rule to clear the regulatory waters, overcome the shrill hyperbole from organizations more interested in shilling for industry and industrial agriculture than in clean water, and get about the business of protecting the quality of America’s surface waters.”

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