The American Farm Bureau Federation is the unified national voice of agriculture, working through our grassroots organizations to enhance and strengthen the lives of rural Americans and to build strong, prosperous agricultural communities.
The purpose of this initiative is to help you answer questions about the “waters of the U.S.” proposed rule and to provide resources to make it easier for the public to engage in the campaign to fight the rule as currently proposed.
Puddles, ponds, ditches, ephemerals (land that looks like a small stream during heavy rain but isn’t wet most of the time) and isolated wetlands dot the nation’s farmland. The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) on March 25 issued a proposed rule that would expand its regulatory authority under the Clean Water Act (CWA) to these types of land features and waters, giving the agencies the power to dictate land-use decisions and farming practices in or near them. The rule will make it more difficult to farm or change a farming operation to remain competitive and profitable.
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The American Farm Bureau Federation today released a legal analysis, “Trick or Truth? What EPA and the Corps of Engineers Are Not Saying About Their Waters of the U.S. Proposal.” The seven-page paper shows how a recent Environmental Protection Agency and U.S. Army Corps of Engineers “Q&A” misleads the public about their proposed expansion of federal jurisdiction over waters.
The Trick: The EPA and Corps of Engineers claim to answer important questions about the rule.
The Truth: The agencies withhold and misstate key information to hide the true impact of the rule.
EPA’s jurisdiction under the Clean Water Act would expand immensely under its proposed Waters of the U.S. Rule. Among the numerous questionable provisions, the rule would define “navigable waters” so as to regulate countless ephemeral drains, ditches and “wetlands” that only contain water when it rains. But whether they are wet or dry on any given day, farming, home building, business expansions, commercial development and countless other land uses in or near these land features will require a federal permit. Permits might take years, or might never be issued. The result amounts to nothing short of federal zoning authority.
EPA clearly thinks it does, but the Supreme Court has said in two separate decisions that there are limits to EPA’s authority under the Clean Water Act. If the agency can regulate every water body from the largest to the smallest, and even those areas that aren’t wet most of the time, as it is proposing in this rule, then there are effectively no limits to the agency’s regulatory reach.
Learn why EPA’s attempt to redefine the Clean Water Act is regulatory overreach and unnecessary.
Tell EPA it’s time to DitchTheRule!
EPA claims in its promotional materials that it is not broadening coverage of the Clean Water Act. However, the details of the rule itself say otherwise.
Advocates for the proposed rule claim that it would restore protections that existed before the Supreme Court’s decisions in 2001 and 2006; however, that is a gross misinterpretation. The court upheld the limits that already existed in the Clean Water Act. EPA might have behaved as if it had the authority to regulate every puddle and ditch in the country, but that doesn’t mean it was right.
For me … the EPA and Corps Clean Water regulations could literally make farming a large portion of our land impossible.”
EPA’s implication that only the federal government is capable of protecting small bodies of water is not supported by science or facts, and EPA certainly has not provided any evidence to support that assertion.
“It threatens local land-use and zoning authority, and is an end-run around Congress and the Supreme Court.”
First, the exemptions are extremely narrow. They only apply to one part of the CWA, the section 404 “dredge and fill” permit program. The rule provides no protection from enforcement over other activities, such as weed control, fertilizer applications and any number of other common farm activities that may trigger CWA liability and permit requirements.
There is absolutely no legal right to a permit to “discharge” into “navigable” waters—or any deadline on an agency’s process to issue a permit. Permitting may take months or even years, or permits may simply be unavailable.
EPA has said the proposed rule will benefit businesses by making it easier to determine if a body of water is covered by the Clean Water Act. Indeed, it is easier if everything is covered. But that certainly doesn’t save anyone from the costs and burdens of increased regulation.
The public comment period on the proposed rule has ended, and now it is time for Congress to step in and help us Ditch the Rule!
If dry farm fields and ordinary farm ditches and ponds are allowed to be regulated as "waters of the U.S.," farming and ranching will suffer and so will those who depend on agriculture for food.