A proposal that federal officials said was intended to simplify federal water laws has instead been interpreted to do the opposite – and the U.S. Environmental Protection Agency is scrambling to defend itself to agriculture and other industries.
EPA Administrator Gina McCarthy on Wednesday traveled to a central Missouri corn and soybean farm to talk about the proposed “Waters of the U.S.” rule. On Thursday, she’s scheduled to speak before a Kansas City, Mo., agribusiness group about it.
And earlier this week, she held a conference call with reporters to address what she called “a growing list of misunderstandings that have been floating around” about the rule.
“Hopefully, it’s an opportunity for me to set the record straight, to explain that while this is not about restricting farmers, it’s about protecting downstream water quality for all of us and doing it in a way that doesn’t get in the way of American agriculture,” McCarthy said. She later added that “while there are legitimate concerns” about the rule, “we’re hearing some concerns that really are _ to put frankly, they’re ludicrous.”
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For example, McCarthy said, “Some people say that EPA’s going to be regulating small, unconnected waters including puddles on lawns, driveways and playgrounds. Now, that’s just silly.”
To agriculture interests, however, the proposed rule is being taken very seriously.
The American Farm Bureau Federation has come out against it, saying on a website of the same name that the EPA needs to “ditch the rule.” Other farm groups and associations involved with land use have pushed back as well, saying that the proposed rule is too broad and will give the EPA far more control over agricultural and other lands than it now has.
The rule is long and complex – 88 pages in the Federal Register. Among other things, it clarifies that the Clean Water Act protects “most seasonal and rain-dependent streams” as well as “wetlands near rivers and streams” and other types of waterways.
Republicans in Congress have introduced legislation to prevent the Obama administration from finalizing the rule.
“We think they need to reconsider, pull the rule and try again,” said Blake Hurst, president of the Missouri Farm Bureau. As for the EPA’s push this week, he said that it’s “hard to have a productive discussion with somebody who has just called you ‘silly.’”
The problem, according to Don Parrish, senior director of regulatory affairs at the American Farm Bureau Federation, is that the administrator’s public statements don’t match up with what the rule itself says.
“The EPA may say ‘We don’t intend for that to happen,’ but I can’t take that to court,” Parrish said. “The words differ in black and white from what she is saying. The words she says to the press will not be what stands up in court.”
The rule was announced by the EPA and the U.S. Army Corps of Engineers in March as a way to clarify protection under the Clean Water Act for streams and wetlands. Enforcement of the decades-old act became confusing and complex following U.S. Supreme Court decisions in 2001 and 2006, the EPA said, and politicians, business, agriculture, environmental and other groups repeatedly asked for rules to clarify what kinds of waterways are and aren’t covered.
In announcing the proposed rule, the EPA said it “does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction.”
But while the EPA says it is not expanding its jurisdiction, the Farm Bureau, among others, say it is.
The new rule, the Farm Bureau said, would “include smaller waters and even some dry land” in its definition of covered waters, and “as a result, permit requirements that apply to navigable waters would also apply to ditches, small ponds and even depressions in fields and pastures that are only wet when there is heavy rain.”
The Farm Bureau concluded: “Under the proposed rule, nearly every drop of water that falls would be regulated by the federal government _ the Environmental Protection Agency and the U.S. Army Corps of Engineers.”
The EPA said this week that it expects to finalize the rule in the spring of 2015.