WASHINGTON, May 29, 2014—Small business owners, including a Washington state cattle rancher, testified on Capitol Hill Thursday in opposition to the EPA’s  proposed rule defining “waters of the United States.” The rule, which is intended to clarify the scope of waters subject to federal jurisdiction under the Clean Water Act (CWA), is open for public comment until July 21.

Jack Field, owner of Lazy JF Cattle in Yakima, Washington, testified on behalf of the National Cattlemen’s Beef Association. He told members of the House Small Business committee that the rule could make the standards of the USDA’s Natural Resource Conservation Services (NRCS) mandatory for any conservation practices on a ranch.

Along with the proposed rule, EPA issued a list of 56 agricultural conservation practices that would be exempt from CWA permits. However, Field said if a conservation practice does not fall within that list or is not done to NRCS standards, it could fall outside the statutory exemption for farming and ranching. 

“Future conservation projects will not be implemented if this rule is allowed to go forward,” he said. 

He gave an example on his farm of a fence he built on his ranch to create a riparian pasture. He chose not to follow NRCS specifications, given the extra cost to do so. If the proposed rule had been in place, he said he would not have risked being in violation of the CWA or invested in seeking a CWA permit to build it. 

Alan Parks, vice president of Memphis Stone and Gravel Company in Tennessee, and Tom Woods, owner of Woods Custom Homes in Blue Springs, Missouri, testified that the proposed rule would increase risks of lawsuits against their businesses, cause construction delays and boost permitting costs.

The businessmen said they already face local and state regulations for potential discharge into waterways associated with construction. Rep. Scott Tipton, R-Colo., echoed several committee members’ sentiments when he called the proposed rule “the greatest water grab by the federal government in the history of the United States.”

The lone witness defending the proposed rule was William Buzbee, the director of the Environmental and Natural Resources Law Program at Emory Law School in Atlanta. He said the law falls within the scope of rulemaking laid out by the Supreme Court and actually cuts back on EPA jurisdiction.

The EPA and the Army Corps of Engineers “have moved the law in the direction of certainty and clarity,” Buzbee said in his testimony. “Undoubtedly, some will not like where they have chosen to draw their lines, but this is an area calling for difficult, expert, regulatory judgments.”

Rep. Kurt Schrader, D-Oregon, joined the majority on the panel when he called Buzbee’s testimony “incredulous.”

“I don’t think anybody with a straight face can say this is anything but a huge grab of jurisdictional power at the end of the day,” Schrader said.

Schrader has co-sponsored a letter with Rep. Chris Collins, R-N.Y., signed by 231 House members asking EPA and the Army Corps of Engineers to withdraw the rule.

They said the rule effectively removes the term “navigable” from the CWAs’ definition with the phrase “significant nexus” that could extend government jurisdiction into ditches and ponds.

Chairman Sam Graves, R-Missouri, sponsored a separate letter last week to EPA chief Gina McCarthy and Jo-Ellen Darcy, assistant secretary of the Army Corps, saying that the EPA did not conduct required assessments of the rule’s consequences on small businesses.

They said the rule includes several broadly-defined terms such as “adjacent,” “riparian area” and “tributary” that could expand the overall definition of “waters of the United States” to include many more small bodies of water. These expanded definitions “may result in significant added legal and regulatory costs for small businesses,” the lawmakers said in their letter.

In his testimony, Woods cited a report disparaging the rule by University of California-Berkley economist David Sunding. The report says EPA used flawed methods to arrive at much lower economic costs of the proposed rule. Sunding also concluded that the EPA’s analysis of the rule is not transparent. 

“Explanations of calculations, basic assumptions, and discrepancies between various EPA analyses are rarely provided,” he states, adding he he was unable to confirm EPA’s data. “These shortcomings indicate that a more thorough analysis is required to properly assess the economic impacts of a definitional change.”

The American Farm Bureau Federation (AFBF), which launched a “Ditch the Rule” campaign opposing EPA’s proposal, circulated Sunding’s report, which was prepared with the support of the Waters Advocacy Council, a group that represents agriculture, forestry, mining, real estate, construction, manufacturing and energy industries.

Ranking Member Nydia Velázquez, D-N.Y., noted that the proposed rule could be a benefit to other types of small businesses not represented at the hearing, including those in recreation, hunting, and commercial fishing. However, she said she is concerned that the agencies did not conduct a small business review.

As part of the “Ditch the Rule” campaign, the Missouri Farm Bureau produced a parody video that has been extremely popular on Twitter and other social media sites. In the video, Missouri farmers Andy and Kacey Clay, along with their children, point out how a dry ditch on their farm could be impacted by the proposed rule. The video is posted here: http://www.agri-pulse.com/Video-Ditch-the-Rule-EPA.asp


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