Attack on WOTUS continues

By Ferd Hoefner

National Sustainable Agriculture Coalition

In the latest congressional attack on the Environmental Protection Agency’s (EPA) regulation of the Waters of the United States (WOTUS), the Senate Committee on Environment and Public Works and the House Committee on Transportation and Infrastructure held a two-part joint hearing on the Impacts of the Proposed Waters of the United States Rule on State and Local Governments on February 4, 2015. This hearing comes three months after the closing of the EPAs twice-extended comment period on the WOTUS proposed rule, which garnered over 900,000 comments, and six months after the House attempted to stop the rule-making process all together.

The first part of the hearing lasted nearly four hours, and was clearly focused on demonstrating the perceived failures of the proposed rule by relentlessly asking about puddles, ditches, snow cover, and other waters that have dominated the WOTUS media discussion. Touting maps from different government agencies unrelated to the proposed rule, the hearing was more about photo opportunities and discrediting the EPA than a fair effort to work towards informed policy-making. Perhaps contrary to the intent, these efforts illustrated the importance of the rule’s attempts to address the ambiguities resulting from Supreme Court decisions regarding the Clean Water Act (CWA).

Chaired by Representative Bill Shuster (R-PA) and Senator James Inhofe (R-OK), the hearing started off with opening statements emphasizing the negative impact WOTUS would have on small businesses while characterizing the rule as another illegal, overreaching regulation giving the EPA endless jurisdiction.

The first witnesses were EPA Administrator Gina McCarthy and Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy. Administrator McCarthy’s testimony laid out her goals for the hearing, namely responding to stakeholders, clarifying any misconceptions, and demonstrating the consistency of the scientific decision-making process.

EPA has repeatedly stated that the proposed rule retains existing exemptions for agriculture, and would reduce the overall extent of EPA’s jurisdiction. From Gina McCarthy’s testimony:

“The final rule will not change, in any way, existing CWA exemptions from permitting for discharges of dredged and/or fill material into waters of the U.S. associated with agriculture, ranching, and forestry activities, including the exemptions for:

Normal farming, silviculture, and ranching practices, which include plowing, seeding, cultivating, minor drainage, and harvesting for production of food, fiber, and forest products;

Upland soil and water conservation practices;

Agricultural stormwater discharges;

Return flows from irrigated agriculture;

Construction and maintenance of farm or stock ponds or irrigation ditches;

Maintenance of drainage ditches; and

Construction or maintenance of farm, forest, and temporary mining roads, where constructed and maintained in accordance with best management practices.

I want to emphasize that farmers, ranchers, and foresters who are conducting the activities covered by the exemptions (activities such as plowing, tilling, planting, harvesting, building and maintaining roads, ponds and ditches, and many other activities in waters on their lands), can continue these practices after the new rule without the need for approval from the Federal government. Additionally, we expect to clarify for the first time in regulation that groundwater, including groundwater in subsurface tile drains, is not subject to the CWA. The proposed rule reduces jurisdiction over ditches, and maintains the existing exclusions for prior converted cropland and waste treatment systems, including treatment ponds and lagoons.”

Despite this clarity presented within the first thirty minutes, the debate continued with Administrator McCarthy attempting to dispel myths for the next three hours. Some of the key issues raised are presented below, including EPA’s responses:

This rule exceeds authority Congress gave to the EPA through the CWA:

“We cannot expand jurisdiction of the CWA, we’re simply trying to provide a clarity of what that is with this rule making”

“This proposed rule speaks to what characteristics water bodies need to have in order to be jurisdictional. We are not expanding the jurisdiction of the CWA. We are not eliminating any exemptions or exclusions from the CWA in this proposal. We are in fact narrowing the jurisdiction of the CWA consistent with sound science and the law.”

Ditches are going to be under federal control:

“In this rule we actually reduce the CWA relative to ditches by making it clear that there are a variety of other ditches that should be excluded from jurisdiction. And, we do our best to explain those from erosional features.”

Isolated puddles, isolated ponds not connected to other waters, artificial irrigated areas, reflecting and summer pools, and water filled depressions from construction are going to be regulated:

“They continue to be exempt.”

The rule will expand jurisdiction for ill-defined ephemeral streams (brief, rain-caused streams) encompassing nearly all waters in any states that are not flat:

“Ephemeral streams are often found to be jurisdictional today and so the intent of this rule was to provide much more certainty on the basis of the science so that we could be clearer about what streams are important to protect and what weren’t.”

States were not consulted:

“I’ve been working very closely with the states for many years and it’s in fact the states as well as stakeholders that told us we need to go back and take a look at the science and make this on much more sure footing in terms on what the science today tells us about what waters are essential for protection.”

“I think one of the reasons to go to rule making which was a judgment this Administration made was to listen to the people that said that this was important enough and the transparency and the certainty of the rule of making process is what we need… We put a proposal out specifically to generate comments… to learn from that.” 

We are disappointed that Congress continues to attempt to derail the public rule-making process. NSAC submitted comments on the proposed rule asking for greater clarity regarding a variety of terms used in the rule, and also suggesting outreach programs to help farmers understand the rule’s jurisdiction, among other suggestions to improve the rule. EPA must consider these comments along with 900,000 in writing the final rule, which is expected in the spring.

Check out EPA’s WOTUS page for more information.