Farm Bureau analysis says final WOTUS rule should be scrapped

By Daniel Enoch

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WASHINGTON, June 11, 2015 - The American Farm Bureau Federation (AFBF) today ramped up its campaign against the EPA's Waters of the U.S. (WOTUS) rule, releasing a detailed analysis of its alleged shortcomings and urging farmers and ranchers to lobby Congress to kill the rule or stop its implementation.

“Our analysis shows yet again how unwise, extreme and unlawful this rule is,” AFBF President Bob Stallman said on a conference call with reporters. “Our public affairs specialists and legal team have assembled the best analysis available anywhere, and their conclusions are sobering: Despite months of comments and innumerable complaints, the Waters of the U.S. proposal is even worse than before.”

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Contrary to EPA's claims, Stallman said the rule, which seeks to redefine which U.S. waters can be regulated under the Clean Water Act, is even broader than the draft rule proposed in April 2014. He singled out the agency's revised definition of “tributary,” which he said now includes features that may not be visible to the human eye - or that existed historically but are no longer present.

Furthermore, he noted that EPA and the Army Corps of Engineers, can now use remote desktop tools to establish the presence of a tributary, without a human ever setting eyes on the feature.

“Thus, land features may be deemed to be tributaries (regulated immediately under the rule), even if they are invisible to the landowner and even if they no longer exist on the landscape,” according to a summary of the analysis, which adds, “So much for clarity!”

AFTB also is taking issue with a “Fact Check” list recently published by EPA and the Corps of Engineers, calling the “facts” cited in the list “fabrications” designed to convince opponents that the rule - which EPA has rechristened the “Clean Water Rule” - isn't going to cause them harm.

Topping the list is the statement that “The Clean Water Rule does not regulate land use.” Actually, AFBF said, “the rule is all about regulating land use - except EPA calls the land ‘water' in the rule.” The Farm Bureau notes that EPA in its own press statements says the rule will regulate 60 percent of the nation's streams and millions of acres of wetland that currently lack protection.

“'Wetland' is simply land that is wet enough to support water-tolerant plants,” AFBF said. “And the newly regulated ‘streams' (unlike most of the already regulated streams) actually contain water only when it rains. They don't look at all like streams to most people - they look like land.”

Additionally, AFBF disputed EPA claims that a Clean Water Act permit is only needed if a protected water is going to be polluted or destroyed; that the rule does not change exemptions for agriculture or add any permitting requirements for farmers; or that the rule does not regulate most ditches.

The Farm Bureau also released a document that compares the EPA's final rule with the draft proposed last year and with current regulations.

During the conference call, Stallman called on farmers and ranchers to urge their representative in Congress to support legislation that would kill the rule, which he said would also increase costs for state and local governments, home builders and other developers. The House recently voted to prohibit the EPA from implementing the rule, although without enough support to overcome a threatened veto. A similar bill is moving through the Senate (S 1140).

Should legislative efforts fail, Ellen Steen, the Farm Bureau's general counsel, said there is “no shortage” of groups, including AFBF, that are ready to take legal action to stop the rule.

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