AFBF isn’t buying EPA’s defense of ‘Waters of U.S.’ proposal

By Sarah Gonzalez

© Copyright Agri-Pulse Communications, Inc.



WASHINGTON, July 18, 2014- Although EPA has been trying to ease controversy surrounding the agency's proposal to re-define “Waters of the United States” under the Clean Water Act (CWA), the effort has had little effect on the American Farm Bureau Federation (AFBF).

EPA and the Army Corps of Engineers released the proposal in March, and have extended a public comment period until Oct. 20. Agricultural organizations including AFBF and the National Cattlemen's Beef Association have asked EPA to withdraw the proposed rule, saying the new language could give EPA broad jurisdiction over dry land features and typical farming practices.

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EPA Administrator Gina McCarthy made a trip to Missouri last week to defend the agency's perspective and other EPA officials have recently ramped up communications with agricultural stakeholders in response to widespread criticism of the rule.

AFBF responded to EPA's campaign in a 16-page document this week that attempts to rebut a blog posted earlier this month by Nancy Stoner, EPA acting assistant administrator for water. Stoner also hosted a webinar this week to outline her points, in an attempt to “clarify confusion” about the rule. AFBF, in its point-by-point retort, said many of her comments are “inaccurate and misleading.”

AFBF President Bob Stallman said his organization and other farm groups have met with EPA several times to discuss the rule, but with no indication that the agency would change its positions.

“EPA is now engaged in an intensive public relations campaign, and we believe its statements are directly contrary to the reality of the proposed rule,” Stallman said. “Agency inspectors and courts will apply the rule, not EPA's talking points.”

While Stoner said the rule does not expand EPA's jurisdiction, AFBF said the language classifies all non-navigable “ephemerals” that ever carry any amount of water and can connect to a navigable body of water as tributaries. “This alone is a huge expansion,” AFBF states.

Stoner insists that ditches would not be classified as “Waters of the United States” if they are dug in dry land and don't flow all the time, or don't flow into a jurisdictional body of water.

However, AFBF said few ditches will qualify for this exclusion. “People don't dig ditches along ridges. Any other ditch that ever carries rainwater that ever makes its way (through any number of other ditches) to navigable waters is IN,” according to AFBF's document. 

The Federation also said the proposal provides “a rationale for agency or citizen enforcers to claim that almost any ditch or low spot can be ‘Waters of the U.S.' This creates confusion and risk-not clarity.” 

Stoner asserted that the proposed rule actually narrows the EPA's jurisdiction over water by adhering to the 2001 and 2006 Supreme Court opinions on the matter. She noted that the Supreme Court said the CWA, first passed in 1972, should cover navigable waters as well as those with a “significant nexus” to navigable waters, based on science.

AFBF retorted that the proposed rule, based on the “connectivity” of all waters, is overly broad and unlawful. “The proposed rule is a cynical attempt to overcome the Supreme Court decisions by finding that virtually all waters have a ‘substantial nexus' to navigable waters,” the farm group said. 

In a related matter, National Farmers Union (NFU) President Roger Johnson wrote to McCarthy asking for more information about which bodies of water would be deemed jurisdictional under the proposed rule. The letter followed a conference call held this week with McCarthy and the NFU board of directors.

“The general sense was that the proposed rule has created less clarity, not more as intended,” Johnson said in the letter. NFU asked EPA to provide a map with estimates of which bodies of water would come under EPA's jurisdiction. The group also asked questions about wetlands in the Prairie Pothole region in the Upper Midwest, coordination with state agencies, and the treatment of unconnected bodies of water that are seasonal.

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