An Environmental Protection Agency proposal that would broaden its authority over “navigable waters” to “waters of the United States” under the Clean Water Act is now in its public comment period, with ag groups calling for more time to dissect the nearly 400 pages of changes.
EPA and the Army Corps of Engineers contend the proposed change “clarifies” protection for streams and wetlands and does not protect any “new types of waters” that have not been covered historically.
But ag organizations aren’t buying it, saying it will give EPA broad and congressionally unintended authority over waters and land uses, particularly on farms and ranches.
The proposal does state some exemptions for agriculture but also contains authority over waters in vague terms, such as “neighboring,” “riparian areas,” “tributaries” and “significant nexus.”
It also relies heavily on “best professional judgment” in application of those and other terms and grants authority to evaluate other types of waters with uncertain connections with downstream water for protection.
“The agency is very good at double-talk,” said Don Parish, senior director of regulatory relations for American Farm Bureau Federation.
The change in definition to waters of the U.S. will designate any flow of water as a tributary. Ninety-nine percent of all ditches in the country are going to be regulated as well as any features that flow into ditches, such as storm water, he said.
“I think EPA was hoping no one would actually read the details contained on the 370-page proposal. But if anyone does — they can quickly understand EPA is giving itself a license to regulate all water,” he said.
The definitional changes contained in the proposed rule will significantly expand federal control of land and water resources across the nation, triggering substantial additional permitting and regulatory requirements, he said.
That permitting gives EPA the authority to veto land use and puts it in the business of permitting and vetoing land decisions, he said.
“It is serious, and it’s very important the public understands the extent of this overreach,” he said.
It will affect such things as home building and costs, roads and traffic, and development of renewable energy and transmission lines, he said.
It’s a breathtaking change, a game-changer and scary, he said.
“It’s going to erect barriers to the way we conduct business on landscapes, including features people (the public) have come to enjoy,” he said.
EPA’s public relations campaign notwithstanding, the proposed rule would regulate many new types of “waters,” he said.
As an example, the common understanding of the term “tributary” would not include so-called “ephemerals” or ditches that carry water only when it rains. But EPA’s proposed rule and EPA’s public statements in support of it are misleading, he said.
“The terms they use are cloaked in jargon and words that evoke images bearing no resemblance to the land that would be regulated, he said.
The proposal expands EPA authority to regulate water regardless of how remote or the duration or volume of flow if they can trace it to downstream water, he said.
National Farmers Union seems to be the odd man out on EPA’s proposal, saying the proposal maintains existing ag exemptions, adds new exemptions and encourages conservation.
NFU has worked with EPA to get clarification of the definitions and has asked EPA for an extended comment period. Its position is to work with EPA for increased certainty surrounding Clean Water Act requirements, just as the ag industry has requested, said Chandler Goule, NFU’s senior vice president of programs.
That as opposed to “screaming at the top of your lungs on a proposal that is just that — a proposal,” he said.
The ag industry needs to be going to stakeholder meetings and going through the notice and comment process to get a workable final rule, not throw the baby out with the bathwater, he said.
“Let’s stop making it a political ghost we’re trying to chase till Nov. 2 and get something that works,” he said.