WASHINGTON, April 2, 2014 – Early reaction to the Environmental Protection Agency’s (EPA) proposed new rule to define “waters of the U.S.” last week was fairly predictable. Republicans and even a few Senate Democrats bashed the March 25 proposal as another example of regulatory overreach by out of touch bureaucrats. Iowa Senator Chuck Grassley, R-Iowa, said President Obama was acting in a “dictatorial manner.... trying to usurp the power that the Constitution gives to people.”

“It’s a perfect example of Washington being an island surrounded by reality,” Grassley said during a call with reporters Tuesday.

“People back home would never assume that a river without water in it would be a navigable waterway.”

However, farm groups who are more closely aligned with Democrats praised the Obama administration – and especially Agriculture Secretary Vilsack – for coordinating with EPA to protect common agricultural practices from permitting. In addition to preserving the CWA agriculture exemptions, the EPA and the Army Corps said they have coordinated with USDA to develop an “interpretive rule” to ensure that 56 specific conservation practices that protect or improve water quality will not be subject to dredged or fill permitting requirements set out in Section 404 of the CWA. For a list of those practices, click here.

But as the dust has settled a bit, and more groups review the 371 - page proposed rule, additional concerns are emerging. Last week, CropLife America expressed concern that the definition could “greatly expand” the definition to include additional bodies of water. After taking more time to review the proposed rule, American Farm Bureau Federation President Bob Stallman issued an even stronger reaction last night.

“The EPA proposal poses a serious threat to farmers, ranchers and other landowners. Under EPA’s proposed new rule, waters—even ditches—are regulated even if they are miles from the nearest ‘navigable’ waters. Indeed, so-called ‘waters’ are regulated even if they aren’t wet most of the time. EPA says its new rule will reduce uncertainty, and that much seems to be true: there isn’t much uncertainty if most every feature where water flows or stands after a rainfall is federally regulated,” Stallman noted.

AFBF also took aim at the proposed exemptions. “EPA accompanied its proposal with a new ‘interpretive rule’ claiming to clarify certain statutory exemptions for agricultural conservation practices, including activities as commonplace and essential to farming as building a fence. But these exemptions apply only to ‘dredge and fill’ permit requirements,” Stallman noted. “They do not protect farmers from federal veto power over pest and weed control, fertilizer application, and other essential farming activities that may result in the addition of ‘pollutants’ to ‘navigable waters,’ -- providing one views every ditch and wet spot across the landscape as ‘navigable waters.’ 

“Clean Water Act jurisdiction over farmlands amounts to nothing less than federal veto power over a farmer’s ability to farm,” Stallman said. “This is not just about the paperwork of getting a permit to farm, or even about having farming practices regulated. The fact is there is no legal right to a Clean Water Act permit—if farming or ranching activities need a permit, EPA or the Army Corps of Engineers can deny that permit.  That’s why Clean Water Act jurisdiction over farmlands amounts to nothing less than federal veto power over a farmer’s ability to farm.”

An EPA spokesperson declined to respond to questions about the agricultural exemptions, but noted that the agency will likely offer more information later this week.


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