Waters of the US Battle Continues

July 23, 2014   
Congress has become the focus of attempts to undo a recent move to extend federal jurisdiction over intermittent waters in and around farm fields.

The trigger of the contention is an Interpretive Rule issued Mar. 25 by the Environmental Protection Agency (EPA) and Army Corps of Engineers. The agencies said the rule’s intent was to clarify their authority under the 1972 Clean Water Act in light of confusing Supreme Court rulings about the concept of “waters of the United States” subject to federal regulation. They claimed agriculture would be essentially unaffected by the rule, but critics believe it opens the way for regulation even of temporary upland waters like ditches and tiled fields if regulators decide these waters may somehow reach “navigable waters” downstream.

To counter the Interpretive Rule, the Agricultural Conservation Flexibility Act of 2014 was introduced in the House July 10 as H.R. 5071. The bill orders the agencies to withdraw the rule and prohibits them from issuing a similar one in the future. In addition, protections for “normal” farming activities would be included.

In a related effort, the American Farm Bureau Federation (AFBF) has taken issue with a blog written by a high-level EPA administrator who alleged that the Mar. 25 rule has a minimal effect on agriculture. AFBF released a point-by-point rebuttal July 16, explaining how the rule’s language could bring dry-land farming practices under permitting requirements. The organization distributed the rebuttal to members of Congress.

The sponsors of H.R. 5071, Rep. Reid Ribble (R-WI) and Rep. Kurt Schrader (D-OR), received a commendatory letter July 18 from 118 agricultural organizations including the National Potato Council. The letter noted that “this legislation would make it crystal clear to the agencies that Congress intended farmers and ranchers to be able to operate without the burdensome regulatory permit scheme under (the Clean Water Act). We strongly support this legislation and thank you for your leadership on this issue.” The bill is currently at the subcommittee level in the House.

The AFBF refuted the EPA’s contention that the confusing Supreme Court rulings added “red tape” to the permitting process. It pointed out that these judicial rulings “didn’t complicate the permitting process. That was already a morass of red tape. The court did make it more difficult for the Corps and EPA to assert jurisdiction over small isolated waters and so-called ‘waters’ that are dry most of the time. The proposed rule would automatically regulate countless small wetlands and miles of ditches and ephemeral drains across the countryside even if the rule is so complicated that farmers may not know their fields are regulated until they get sued.”

The EPA blogger claimed that the agencies are not “asserting regulatory authority over land use,” but AFBF disagreed: “When federal agencies have the power to grant, deny or veto a federal enforceable permit to plow, plant, build a fence, apply fertilizer or spray pesticide or disease-control products on crops, that is regulatory authority over land use. A landowner who cannot, without a federal permit, construct a house on, build a fence over or plow through a low spot or ephemeral drain that runs across his or her land is, in effect, faced with land-use regulation.”

The Weekly Potato Report