Lawmakers, stakeholders clash on proposed WOTUS rule changes

By Whitney Forman-Cook

© Copyright Agri-Pulse Communications, Inc.



WASHINGTON, March 24, 2015 - Senate Agriculture Committee members know that the proposed waters of the U.S. (WOTUS) rule will change - EPA chief Gina McCarthy has said so - but what they don't know is if those changes will help or hurt U.S. farmers and ranchers.

“I believe the appropriate changes will be made to ensure that our agricultural producers get the certainty they need and deserve,” Debbie Stabenow, D-Mich., the panel's ranking member, said in her opening statement at a hearing today on WOTUS. “This is critically important so that our farmers and ranchers can continue operating with the confidence that their farming activities will not be regulated under the Clean Water Act (CWA).”

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Committee Chairman Pat Roberts, R-Kan., disagreed. He said in his opening statement that the “EPA has provided no assurances based on concrete evidence to alleviate any concerns from agriculture or rural America about this rule.”

Most of the panelists at the hearing were critical of the rule's lack of specificity when it came to defining terms like “tributary,” “adjacent” and “significant nexus.” The definitions are confusing, Arkansas Attorney General Leslie Rutledge testified. So confusing that the rule should be considered a violation of due process, and therefore unlawful, because it is “impermissibly vague,” she argued.

A few of the witnesses suggested that the proposed statute's ambiguity was a ploy to expand the federal government's jurisdiction over privately owned land.

“The EPA has characterized the new definition (of WOTUS) as a ‘clarification,' but the only thing it has made clear is the EPA's objective to expand federal jurisdiction,” Donald van der Vaart, secretary of North Carolina's Environment and Natural Resources Department, testified.

Van der Vaart said farmers and ranchers are particularly vulnerable to the proposed rule's “definitional latitude,” because it subjects their land to additional regulation and causes uncertainty in their operations. For starters, “Farms typically do not have a wide topographic range. Areas of farms may not drain well, and yet fall short of being properly characterized as a wetland. Under those definitions, those low, flat areas, might potentially become jurisdictional waters due to ‘adjacency,' (a term used in the WOTUS rule) depending on the judgment of the individual regulator,” van der Vaart said.

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This issue of “definitional latitude” was a sticking point for all the hearing witnesses. Even Josh Baldi, the regional director of Washington state's Department of Ecology, who supports the proposed rule, said some definitions remain a concern.

“Given the variety of (ecological) conditions across the county, it is understandable that the rule has (vague) definitions,” Baldi explained. To fairly account for that diversity, he recommended that “regionally appropriate definitions of floodplains and riparian areas” be developed and included in the final rule so that there is a “common understanding of those terms and how they are applied on the landscape.”

Baldi said his agency supported the proposed WOTUS rule because he said it would give small, but important streams and wetlands protection under CWA and would not affect “the existing, broad exemptions under the CWA for farming, ranching and silvicultural practices.”

Other definitions in the proposed rule sparked discussion as well. Kent Peppler, the president of the Rocky Mountain Farmers Union, took issue with how “tributary” is defined. He said that the definition as it stands would increase the acreage protected under CWA to include irrigation ditches and wetlands on farms.

Instead, he argued, “tributaries” should be typified by high water marks and the presence of a bed or banks. Changing the definition in this way would protect farmers and ranchers from having to comply with CWA regulations on temporary accumulations of water related to isolated rain events, he said.

The EPA's cost-benefit analysis projects that the rule, as proposed, would provide between $388 million and $514 million in annual public benefit through ecosystem services like groundwater recharge, water filtration, reduced risk of flooding and enhanced recreational opportunities. If the rule is not finalized, EPA estimated that the yearly cost of mitigating future stream and wetland impacts and pollution would be between $162 million and $278 million.

Roberts was skeptical of EPA's findings. He said that a study commissioned by the Waters Advocacy Coalition “raises critical questions and criticisms with regard to many assumptions EPA factored into the agency's cost benefit analysis.”

The Waters Advocacy Coalition represents an array of organizations, including the American Farm Bureau Federation and the American Petroleum Institute. Its study, which is better characterized as a review of EPA's analysis, said that the agency's results “relie(d) on a flawed methodology for estimating the extent of newly jurisdictional waters” and only accounted for costs associated with section 404 of the Clean Water Act, even though there are four other sections of the law that would be subject to the WOTUS rule.

In a recent address to the National Farmers Union, EPA's McCarthy said a revised WOTUS rule would be finalized this spring or summer. She also acknowledged that the administration had bungled the rollout of the rule and should have called it the “Clean Water rule” rather than WOTUS.

Roberts said he isn't impressed by talk of a name change. “Merely changing the name is not enough. Change the rule,” he said.

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