The House passed a bill last week to stop EPA from finalizing the rule but the Democrat-run Senate is unlikely to consider such legislation this fall. Proponents say the regulation clarifies federal jurisdiction after two Supreme Court decisions. Farm groups call it a power grab.
Organizations on each side of the issuing are running campaigns on their Web sites that allow members to submit comments in a matter of moments. The American Farm Bureau Federation, National Cattlemen’s Beef Association and National Corn Growers Association are prominent among the opponents. Advocating for the rule are Natural Resources Defense Council, the Sierra Club, National Wildlife Federation and Environment America.
NRDC appears to have generated more than 101,000 comments. A July 24 comment that mirrors the NRDC’s suggested lettter is accompanied by the notation, “This agency received 101,324 comments that were duplicates.” The five-paragraph letter says the regulation “is an important step” towards “preserving our sources of clean drinking water.” It later adds, “EPA has already received more than 100,000 letters in support of moving forward with this rule to protect, streams, wetlands, rivers and other waters from pollution or destruction.”
Farm groups also give members a chance to submit a prepared letter; NCGA has a nine-paragraph letter ready to go, for example. AFBF also has a sample letter and tells members, “We ask that you add details around your personal situation…Identical comments are not as influential as personalized letters.”
The gist of the NCGA letter is this: “My concerns with the proposed rule fall into four broad categories. First is the tremendous uncertainty that I face because of the way the rule defines what is a tributary and what is an adjacent water subject to the Clean Water Act. Second is how unmistakable it is that the proposed rule represents a significant expansion of federal Clean Water Act jurisdiction relative to anything that has ever been in rulemaking before. Third, relative to the scope of jurisdiction, while it may be true that some ditches are not waters of the U.S. under the proposed rule, the fact is that vast numbers of ditches are or could be subject to federal jurisdiction. Lastly, if these or other drainage features and waters like them that are located on my farm are made jurisdictional, I fear I would face serious risk of lawsuits challenging my use of fertilizers and pesticides that may come in contact with those features as a violation of the Clean Water Act unless I have a federal national pollution discharge permit.”
EPA has a different view, expressed in this example by an op-ed by Ken Kopocis, deputy assistant administrator for water: “The… intent is to protect clean water without getting in the way of farming and ranching. Normal farming and ranching—including planting, harvesting, and moving livestock—have always been exempt from Clean Water Act regulation, and our proposal doesn’t change that. We worked with USDA’s Natural Resource Conservation Service and the Army Corps of Engineers to exempt 56 conservation practices familiar to many farmers, such as range planting and wetland restoration, who know their benefits to business, the land, and water resources.”