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April 2014

Administration to Publish Misguided ‘Waters of the U.S.’ Proposal


Bob Stallman
President
American Farm Bureau
By Bob Stallman
President, American Farm Bureau

The administration often talks about creating jobs, and with millions out of work the White House is right to focus on the issue. So it’s puzzling that the administration would consider a proposal that will hurt farms and other businesses, making it more difficult to create jobs.

The administration is about to propose regulations to broadly expand the scope of the Clean Water Act. When Congress wrote the law, it was clear that it only applied to navigable waters or, as the law names them, “waters of the U.S.” Two Supreme Court decisions have reaffirmed that those terms do not cover all waters.

However, the impending proposal would effectively eliminate any constraints those terms now impose on federal jurisdiction. It would let EPA and the Corps of Engineers regulate virtually any and all waters found within a state, no matter how small or seemingly unconnected to a federal interest.

Farmers and other landowners should be concerned that the federal government is proposing to regulate ditches and, in some cases, even dry land. Based on a leaked version of the rule, any landscape feature that could be found to contribute any flow that eventually reaches a water of the U.S. would be regulated the same as the Mighty Mississippi! More landowners will have to apply for federal permits to make changes in how they use their land. Uncertainty about whether the government would issue a permit could be an innovation killer.

Ineffective Exemptions

EPA has claimed that the proposal won’t be so bad because of exemptions. The exemptions may help some avoid costly permit requirements, but the agencies have so narrowed them that most farming activities do not qualify. If a young, beginning farmer changed his grandfather’s land from, say, a cornfield to an apple orchard, he would have to get a permit or face up to $37,500 a day in fines. Homebuilders and other industries that fuel our economy would face similar requirements.

Also, the existing exemption for agricultural stormwater – water that stands on a field after a heavy rain – would no longer benefit farmers because the land underneath would be subject to federal regulation.

Economic Impact

EPA had to do an economic impact analysis of the proposal and it did – sort of. Through selective use of data and outdated studies, by not addressing all the costs of getting permits and by dramatically underestimating the acreage affected, the analysis cooks the books in favor of the proposed rule. Other economists say the government’s analysis doesn’t hold water.

You would think that with the economic challenges we face and with such an unsound basis for the proposed rule the administration would shelve it. Instead, it is likely to publish it soon. Then we will see how serious the administration is about growing the economy and creating jobs.