Clean Water Act, WOTUS

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Issue

The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers finalized a rule significantly expanding the definition of “waters of the United States” under the Clean Water Act in August 2015. EPA not only failed to listen to concerned farmers, ranchers and business owners around the country in crafting its new rule, but actually managed to make the final rule worse than anticipated. The agency is making it impossible for farmers and ranchers to look at their land and know what can be regulated. EPA has vastly expanded its authority beyond the limits approved by Congress and affirmed by the U.S. Supreme Court. Farm Bureau is seeking to require EPA to withdraw this regulation and propose a new rule that reflects not only the limitations imposed by both Congress and the Supreme Court, but the views offered after consultation with states.

Impact

The WOTUS rule grants regulatory control over virtually all waters, assuming a scope of authority Congress has not authorized. The rule effectively eliminates any constraints the term “navigable” previously imposed on the Corps’ and EPA’s CWA jurisdiction, and the list of waters deemed “non-navigable” is exceptionally narrow--providing that few, if any waters, would fall outside federal control. This kind of shift in policy means that EPA and the Corps can regulate any or all waters found within a state, no matter how small or seemingly unconnected to a federal interest.

The final rule provides none of the clarity and certainty it promises. Instead, it creates confusion and risk by giving the agencies almost unlimited authority to regulate, at their discretion, any low spot where rainwater collects, including common farm ditches, ephemeral drainages, agricultural ponds and isolated wetlands found in and near farms and ranches across the nation. The rule defines terms like “tributary” and “adjacent” in ways that make it impossible for farmers and ranchers to know whether the specific ditches, ephemeral drains or low areas on their land will be deemed “waters of the U.S.” But these definitions are broad enough to give regulators (and citizen plaintiffs) plenty of room to assert that such areas are subject to CWA regulation. The rule will give the agencies sweeping new authority to regulate land use, which they may exercise at will, or at the whim of a citizen plaintiff.

AFBF Policy

  • Farm Bureau has significant concerns with the regulation and believes it expands federal jurisdiction, resulting in the imposition of burdensome requirements on agricultural producers.
  • Farm Bureau supports congressional efforts to have EPA and the Corps withdraw the rule and limit funding for implementation.
  • Farm Bureau supports a rule that conforms to the limits approved by Congress and affirmed by the Supreme Court.

WOTUS Timeline

April 21, 2014

The Public’s view on new rule

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) published for public comment a proposed rule defining the scope of waters protected under the Clean Water Act (CWA). According to the EPA, this proposal would enhance protection for the nation's public health and aquatic resources, and increase CWA program predictability and consistency by increasing clarity as to the scope of “waters of the United States” protected under the Act.

April 28, 2014

It’s time to Ditch the Rule!

AFBF launched DitchtheRule (www.ditchtherule.fb.org), a microsite to provide key information on the WOTUS rule, its impact to farmers around the country and links to take action and submit comments to EPA and Congress

August 28, 2015

The WOTUS rule takes effect

The final EPA and Corps rule defining the scope of waters protected under the CWA went into effect. Litigation challenging the rule is ongoing and will be for years to come. Various federal courts have stayed the rule, but the rule is ultimately final.

December 14, 2015

GAO finds EPA violated law on WOTUS

The GAO found that the Environmental Protection Agency broke the law with its social media and grassroots lobbying campaign advocating for its own Waters of the U.S. rule. It has become clear that the agency used illegal tactics to manufacture ill-informed support for the rule.

Today

What now?

Farm Bureau is seeking to require EPA to withdraw this regulation and propose a new rule that reflects not only the limitations imposed by both Congress and the Supreme Court, but the views offered after consultation with states. This regulation expands federal authority beyond the limits approved by Congress and affirmed by the U.S. Supreme Court; the impact makes it more difficult to farm or change a farming operation to remain competitive and profitable.

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