Daily Archives: September 16, 2014

House votes to halt Clean Water Act rulemaking process

National Sustainable Agriculture Coalition

On its second day back in session after a five-week August recess, the House of Representatives voted 262-152 on Tuesday, September 9 to pass H.R. 5078, a bill that would prohibit the Environmental Protection Agency (EPA) and Army Corps of Engineers (the Corps) from finalizing and implementing the proposed Waters of the United States (WOTUS) rule.

After an hour of debate, the House passed the “Waters of the United States Regulatory Overreach Protection Act” largely—though not entirely—along party lines. Just one Republican voted against the bill while 35 Democrats voted for passage.  See the full vote count here.

Representative Steve Southerland (R-FL) introduced the bill, which would require EPA and the Corps to cease work on the current proposed rule, and instead consult with local and state governments to develop a regulatory framework defining waters of the US. In essence, the bill, if it were to become law, would lock in place the current regulatory uncertainty and continue the long, costly, and painful process of policy making via litigation. There are no current plans for Senate consideration of the House-passed bill, however.

The Rule

The 88-page WOTUS rule has been a source of controversy since the EPA and Corps issued it in April of this year to clarify the murky, and subsequently litigated, definition of “waters of the US” in the Clean Water Act (CWA). Under the CWA, waters of the US are defined as traditional navigable waters; interstate waters; and all other waters that could affect interstate or foreign commerce, impoundments of waters of the US, tributaries, the territorial seas, and adjacent wetlands.

This final category created confusion, particularly when applied to wetlands. In light of Supreme Court cases in 2001 (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159) and 2006 (Rapanos v. United States, 547 U.S. 715), EPA proposed the WOTUS rule to provide clarity regarding the waters under its jurisdiction. Along with the proposed rule, EPA and Corps issued an Interpretive Rule that applies specifically to CWA Section 404 permitting for discharge of dredge and fill material into waters (including wetlands).

Reactions to both rules have been mixed, to say the least. While some groups applaud the proposed rule for its attempt to provide consistency to CWA implementation, others have outright opposed the entire rulemaking process.

NSAC has been involved from the beginning, submitting comments on the Interpretive Rule in July. Public comments on the WOTUS proposed rule are due October 20.

The Vote

H.R. 5078 calls for the EPA and Corps to scrap both the WOTUS rule and Interpretive Rule. It directs EPA and the Corps to develop a new regulatory proposal in collaboration with state and local officials. The first report on this proposal would be due 12 months from the bill’s enactment and would require a minimum of 180 days for public comment.

Debate on the bill was largely a back and forth between House Republicans claiming the rule is a federal “power grab” and House Democrats defending the rule’s necessity. In one of the more dramatic moments, Representative Marcy Kaptur (D-OH) called the legislation a “Death Bill” and displayed a jar of algae-filled water from Lake Erie, referring to the Toledo water crisis that left half a million people in Kaptur’s district without drinking water for three days this summer. On the other side of the debate, Representative Collin Peterson (D-MN) argued that the bill was essential, as the EPA did not “understand the real world effects these regulations will have on farmers across the country.”

The EPA has continually stated the WOTUS rule is not intended to expand jurisdiction or bring agriculture under heavier regulation, even launching a “Ditch the Myth” campaign to counter the Farm Bureau’s “ditch the rule” campaign.  Ahead of the House vote, the agency released a Question and Answer document attempting to respond to the major concerns raised by the public and the farming community regarding the scope of the rule.  The new Q&A document is quite an improvement over previous attempts to explain the rule’s impact on agriculture.

Still, confusion and hyperbole reign — Representative Tim Bishop (D-NY) proposed two amendments, one of which was intended to provide clarification that the EPA would not regulate “puddles, water on driveways, birdbaths, or playgrounds.” The House did not pass any amendments to the bill.

The Veto?

The bill is unlikely to go far in the Democrat-controlled Senate, let alone be considered in the few, remaining daysbefore they break in October. Should it make it to the President’s desk, the Obama Administration has already threatened to veto it. In a Statement of Administration Policy published September 8, the office criticized the legislation, writing:

“H.R. 5078 would derail current efforts to clarify the scope of the CWA, hamstring future regulatory efforts, and create significant ambiguity regarding existing regulations and guidance.  It would deny businesses and communities the regulatory certainty needed to invest in projects that rely on clean water. In addition to vitiating the specified draft regulations and already withdrawn guidance, the bill would call into question ‘any successor document’ or ‘substantially similar’ proposed rule or guidance, even if all stakeholders reached consensus. If enacted, H.R. 5078 could also incite further litigation that would only magnify confusion and uncertainty among affected stakeholders.”

Clearly, H.R. 5078 is more symbolic than it is substantive. NSAC has already expressed its disapproval at Congress’ attempts to disrupt the public rulemaking process. We are continuing to work with our members and intend to submit comments for the WOTUS rule this fall.

Kansas NRCS receives $3.8 million to protect and enhance agricultural and wetland easements

Eric B. Banks, Kansas State Conservationist for the U.S. Department of Agriculture’s (USDA) Natural Resources Conservation Service (NRCS) announced that $3.8 million in conservation funding has been allocated in Kansas to help landowners protect and restore key farmlands, grasslands, and wetlands.  This announcement follows Secretary of Agriculture Tom Vilsack’s statement that $328 million is being invested nationally for this USDA initiative.

“Through conservation easements, farmers will be better able to protect valuable agricultural lands from development, restore lands best suited for grazing, and return wetlands to their natural conditions,” said Banks.  “Conservation easements are making a dramatic and positive impact for food supply, rural communities, and species habitat.”

The 2014 Farm Bill created the Agricultural Conservation Easement Program, or ACEP, to protect critical wetlands and keep lands in farming and ranching for the future.  According to Banks, approximately 18 projects statewide were selected to protect and restore 4,800 acres of prime farmland, grassland, and wetlands.

Through ACEP, private or tribal landowners and eligible conservation partners working with landowners can request assistance from USDA to protect and enhance agricultural land through an agricultural or wetland easement.

These easements deliver many benefits over the long-term, for example, this year’s projects will:

♦ Improve water quality.

♦ Provide and protect habitat for threatened, endangered, and at-risk species including the lesser prairie-chicken and whooping crane.

♦ Protect prime agricultural lands that are being fragmented and under high risk of development to non-agricultural uses to help secure the nation’s food supply and jobs in the agricultural sector.

ACEP consolidates three former NRCS easement programs—Farm and Ranch Lands Protection Program, Grassland Reserve Program and Wetlands Reserve Program—into two components—one that protects farmlands and grasslands and another that protects and restores agricultural wetlands.

“The 2014 Farm Bill streamlined USDA’s major easement programs into one, putting the important benefits of protecting farmlands, grasslands and wetlands all under one roof to make it as easy as possible for landowners to participate,” Banks said.  Find more information on ACEP here.  To learn about technical and financial assistance available through conservation programs, visit www.nrcs.usda.gov/GetStarted or local USDA service center.

Leashed Tracking Dogs to recover fatally wounded or dead big game, September 19th

The use of Leashed Tracking Dogs to recover fatally wounded or dead big game in Kansas, adopted by the Kansas Wildlife, Parks and Tourism Commission at its August 21 meeting in Great Bend, has been finalized. The regulation will take effect on Sept 19 according to the Kansas Department of Wildlife, Parks and Tourism.

According to K.A.R. 115-4-4, dogs may be used to retrieve dead or wounded big game animals if the following requirements are met:

(1) Each dog shall be maintained on a handheld leash at all times while tracking the big game animal;

(2) An individual tracking big game animals outside of legal shooting hours shall not carry any equipment capable of harvesting the big game animal;

(3) Each individual harvesting a big game animal shall be limited to the equipment type for the permit and the season that is authorized; and

(4) Each individual participating in the tracking of the big game animal shall have a hunting license, unless the individual is exempt by law or regulation.

The use of leashed tracking dogs is a part of K.A.R. 115-4-4, Big Game; legal equipment and taking methods. To see all the regulations covering hunting and fishing, go to http://kdwpt.state.ks.us/.

River Otter

River Otter

River Otter

River Otter:  Photo Credit: River Otter Academy 

The River otter (Lontra Canadensis) is a semiaquatic mammal in the weasel family. Its head is flattened with small ears. It has short legs with webbed toes, and a tapered tail designed for swimming nearly 7miles per hour. The fur on its back consists of a soft oily underfur interspersed with longer glossy guard hairs. River otters construct dens under tree roots, in thickets, in burrows abandoned by woodchucks as well as abandoned beaver & muskrat lodges. In the 1800s and earlier, River otters lived along all major rivers and numerous permanent streams across Kansas. However, overtrapping and agricultural development of land along water habitat severely reduced river otter population throughout the Great Plains and much of the Midwest so that River otters were extirpated in Kansas by 1904. However, in 1983 and 1984, 19 river otters from Idaho and Massachusetts were reintroduced on the South Fork Cottonwood River in Chase County. Also, multiple reintroductions of River otters from Missouri established a large population of otters by the year 2000. Today, river otters live in eastern Kansas along portions of the Cottonwood, Neosho, Spring, Marmaton, Marais de Cynes, Deleware, Kansas, and Missouri rivers. Although mostly active after sundown, river otters may be observed during daylight hours also. They forage along streams and rivers mostly for nongame fish and crayfish depending upon the time of year. When opportunity provides it River otters will consume various fruits, voles, deer mice, muskrats, young beavers, reptiles, birds, bird eggs, frogs, crayfish, molluscs, large insects and worms. They are susceptible to water pollution since they accumulate mercury and other toxins. The Clean Water Act has reduced pollution of the large rivers but small wetlands and stream are still vulnerable to polluters.