Ag groups, lawmakers fuming at release of final WOTUS rule

By Spencer Chase

© Copyright Agri-Pulse Communications, Inc.



WASHINGTON, May 27, 2015 - Agriculture groups and farm-state lawmakers reacted with sharp criticism today after the EPA and the Army Corps of Engineers released the final rule redefining which waters of the U.S. can be regulated under the Clean Water Act.

The American Farm Bureau Federation said it would carefully review the 297-page Clean Water Rule, also known as waters of the U.S. (WOTUS), before deciding on an “appropriate course of action.” But the biggest U.S. farm group said the process used to develop the rule was “flawed.”

AFBF President Bob Stallman accused EPA of making “numerous misstatements about the content and impact” of the original version of the rule it proposed more than a year ago. Based on that, as well as the “aggressive advocacy campaign” EPA mounted to support that proposal, “we find little comfort in the agency's assurances that our concerns have been addressed in any meaningful way,” Stallman said.

The National Cattlemen's Beef Association, one of the most vocal groups in opposition to the rule, said the EPA is pushing an agenda rather than trying to approach new regulations sensibly.

Without naming names, NCBA President Philip Ellis said former campaign officials for President Barack Obama who'd received political appointments at EPA were “apparently putting their activist knowledge base to use.” He said the agency “soliciting endorsements” for its proposed rule “is a far cry from simply educating the public, as EPA officials claim.” 

The American Soybean Association and National Corn Growers Association (NCGA) took more muted positions.

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American Soybean Association President Wade Cowan said producers are in a “'trust but verify' mode” concerning the EPA because, like many in agriculture, the group felt they “haven't been given an opportunity to comment on EPA's revision of the rule.”

NCGA President Chip Bowling said his organization will work with EPA “as much as possible” to ensure “clear and workable” rules for farmers, adding that NCGA would fully review the rule “to ensure that the broad promises made in the EPA press release are carried out in the text of this comprehensive rule.”  In one of its releases, the EPA said the rule maintains all previous exemptions and exclusions for agriculture and does not include any new permitting requirements.

The National Association of State Departments of Agriculture (NASDA), which has publically called for the rule to be withdrawn, said it was “disappointed” that state co-regulators were not given an opportunity to review the rule and provide input before it was released.

“Because of its far-reaching impacts, it is imperative we get this rule right to ensure a rule that works for state regulatory agencies and impacted stakeholders, NASDA CEO Barbara Glenn said.

The National Farmers Union was much less vocal on the subject. Roger Johnson, the organization's president, said the rule “is not perfect from our perspective,” but called it “an improvement over the proposed rule.” Johnson went on to say NFU is concerned “about waters that cannot impact the quality of jurisdictional waters will fall under jurisdiction” and that farmers “will not have the regulatory certainty” to address those waters accordingly. 

William Kovacs, U.S. Chamber of Commerce senior vice president of environment, technology, and regulatory affairs, said “countless business owners” outside of agriculture oppose the rule and are concerned about its impact.

“Since issuing the proposed rule for public comment in April 2014, the agencies have somehow maintained that the proposal will have no significant regulatory or economic impact,” Kovacs said in a statement. “Such statements fly in the face [of] reality.” 

Meanwhile, lawmakers from both parties are taking action to block the rule through either appropriations measures or standalone bills. Oklahoma Republican Jim Inhofe, the chair of the Senate Environment and Public Works Committee, said the EPA and the Army Corps of Engineers “have failed to keep their promises” to Congress and the general population.

“Instead of fixing the overreach in the proposed rule, remarkably, EPA has made it even broader,” Inhofe said. “The EPA has set themselves up to increase federal control over private lands, and I will not allow it.”

Inhofe said his committee is planning a markup for the Federal Water Quality Protection Act for sometime “this summer.” The bill, S. 1140, was introduced in late April by a bipartisan group of senators. It essentially tells EPA to start over on the rule and seek more comment when drafting a replacement.

Senate Agriculture Committee Chairman Pat Roberts, R-Kan., is a cosponsor of the bill, and he recently criticized what he called “questionable activities” by EPA in eliciting support for the proposed rule during the public comment period. In a statement today, Roberts said farmers and ranchers “cannot be ignored.”

“The EPA's conduct during the rulemaking process confirms my belief that the administration is not listening,” Roberts said. “Any American who feels aggrieved by their government now has no voice. This is a serious problem.”

North Dakota Sen. Heidi Heitkamp was one of the Democratic cosponsors of S. 1140. In a statement, she said WOTUS is the top concern for farmers and ranchers in her state.

“It's frustrating that after so much time, the EPA today decided to finalize this rule instead of conducting more consultations and releasing a revised rule as our legislation would require,” she said. “As a result, it unfortunately still considers many Prairie Potholes as waters that it will regulate, which doesn't address all of the serious concerns of farmers and ranchers.”

Nebraska Republican senator Deb Fischer said the rule is “an attack” on the people of her state, calling it a “reckless and unwarranted” regulation that “implies that Washington bureaucrats know better than the people of (Nebraska).”

“Through this unprecedented overreach, the federal government will now extend their control over our state's water resources and burden our families with costly permit requirements,” Fischer said. “Make no mistake - this is a blatant attempt to expand the federal government's control. This rule will have far-reaching consequences and hurt Nebraska families, communities, and businesses.”

 In early May, the House passed an Energy and Water appropriations measure that included a provision blocking the administration from implementing WOTUS in FY 2016. The House also approved a clean repeal of the rule, a companion measure to the Senate bill, two weeks ago, with support from 24 Democrats.

Democrat Collin Peterson of Minnesota, the ranking member of the House Agriculture Committee was one of those votes in favor of repeal, and he said today he wants to work with his colleagues “to ensure these arbitrary and subjective regulations never go into effect.”

"I am disappointed but not surprised that the EPA has decided to move forward with a rule that would increase confusion and red tape,” Peterson said in a statement. “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.”

In a joint statement, House Agriculture Committee chair Mike Conaway, R-Texas and the panel's Conservation and Forestry Subcommittee Chairman Glenn Thompson, R-Pa., said the committee had asked the administration “to work with stakeholders . . . rather than act as a schoolyard bully.” But those requests “were dismissed in favor of the expansion of federal authority despite bipartisan opposition from Congress and the public,” Conaway and Thompson said.

“It is ironic that the agencies' defense of this rule is that it provides clarity to producers regarding what is and is not regulated. These hollow assurances hold little comfort for farmers and ranchers who will face steep civil fines for any violation.”

House Majority Leader Kevin McCarthy, R-Calif., called the rule an example of executive overreach and a “flagrant disregard for the democratic process and the voice of the American people.

“President Obama's actions to circumvent Congress and the American people have culminated in yet another gross overreach of executive action,” McCarthy said. “The EPA appeared to be more focused on acting as a special interest group and forcing this rule on the American people than following the regulatory process as it is intended.”

Obama today defended the rule, saying clarification of the scope of the Clean Water Act was necessary to protect streams and wetlands for use by future generations.

“This rule will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable,” Obama said, pointing to previous efforts of his administration to improve the Chesapeake Bay and the Great Lakes watersheds. “With today's rule, we take another step towards protecting the waters that belong to all of us.”

The rule will be effective 60 days after it is published in the Federal Register.

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