Ditch Proposed Water Rule

Here we go again. The Environmental Protection Agency (EPA) is proposing a new rule that would give the agency more control over waters of the United States. The farm industry is dead set against this change because the rule would give EPA more ability to impose restrictions on farms and industry under the Clean Water Act (CWA).

Congress passed the CWA in 1972 for the purpose of banning the discharge of pollutants into navigable waters without a permit. The original concept of the CWA had merit but over time liberal interpretations of that act have morphed it into a federal power grab.

Over regulation and expanding controls are common these days and one need only look at the Clean Air Act, the Endangered Species Act, the Wilderness Act and the Antiquities Act to find more examples of our government’s proclivity for exerting more control over land and natural resource use.

Over the past 40 years, EPA and the Army Corps of Engineers have attempted to expand the jurisdictional limits of the CWA in an effort to broaden the definition of “Waters of the US.” For example, in 1986, EPA attempted to regulate waters that were used by migratory birds that crossed state lines.

The new rule contemplated by EPA, now open for public comment, has linkage to a 2006 US Supreme Court ruling wherein Justice Kennedy opined that a “significant nexus” between an isolated wetland and traditional navigable waters could be enough for federal jurisdiction; however, Justice Kennedy did not define “significant nexus.”

The proposed rule would give EPA authority over certain ditches, intermittent and ephemeral streams, ponds and puddles and marshlands that have a ‘significant nexus’ to navigable waters. The operative word here is “significant” and such vague terminology could easily make approval of permitted activities more difficult and enhance the ability of special interest groups to bring lawsuits against landowner operations believed to be in violation of the CWA.

EPA claims the rule clarifies the scope of the CWA but it also expands regulatory authority to include features where water only flows or stands after a rainfall. EPA has clearly gone overboard on this one prompting attorneys general from 15 farm states to send the agency a letter that challenges the water rule and calls for it to be withdrawn.

So, what can concerned citizens do to ditch the EPA rule?

Click on the website for the American Farm Bureau Federation at ditchtherule.fb.org and review the issue. The site discusses impacts on landowners and provides guidance for preparing public comments on the proposed rule. Also, contact your elected officials and ask for their help.

Public comments on the rule must be received by the EPA by Oct. 20, and can be emailed to epa.gov/uswaters, click on the contact us icon.

It is critically important that EPA hear from all landowners who believe the rule is wrongheaded and must be ditched.