June 22, 2016
Last year, the U.S. Environmental Protection Agency (EPA) announced that it had finalized the Clean Water Rule, a rule intended to clarify the scope of the agency’s jurisdiction over the “waters of the U.S.” under the Clean Water Act (CWA).
The rule, which has significant benefits for agriculture, clean water, and public health, went into effect (briefly) in 37 states last year. Due to the judicial challenges that immediately followed the rule’s implementation, it has since been put on hold (see more below under “background”).
Riders Aim to Block Implementation
Lawmakers opposed to the Clean Water Rule recognize that judicial stays don’t last forever, and are therefore scrambling to get legislation in place (through backdoor “riders” attached to annual spending bills) to permanently block it. The Senate Appropriations Committee’s fiscal year (FY) 2017 spending bill for the Departments of Interior, EPA, and the Forest Service passed out of Committee last week with the rider attached. The House Appropriations Committee, which has already voted to approve their corresponding spending bill, also included the same rider to block the Clean Water Rule. The House bill heads to the floor next week, but it remains unclear if and when the full Senate will consider their version of the funding bill.
While there have been numerous attempts to block the Clean Water Rule through the appropriations process or stand-alone legislation, to date opponents have been unable to garner the support necessary to do so. Last year’s final funding bill, which was an “omnibus,” or package of 12 individual spending bills, did not include a policy provision to block the rule. While the omission was a victory for agriculture, public health, and clean water, we are disappointed that appropriators continue to target the rule through obstructionist riders.
319 Grant Program Funding Higher in Senate Bill
The annual EPA appropriations bill also determines funding for the Nonpoint Source Management Program (Section 319) under the Clean Water Act, which provides federal support to state and local nonpoint source efforts, primarily from agriculture. Under Section 319, states, territories, and tribes can receive grants to support a wide variety of activities including technical assistance, financial assistance, education, training, demonstration projects, and monitoring to assess the success of specific nonpoint source implementation projects.
The projects supported through Section 319 benefit the agricultural community by providing for water quality monitoring that can evaluate best management practices for farmers and ranchers (e.g., diversification, habitat restoration, pasture rotation, streambank revegetation, livestock exclusion, etc.).
The Senate’s FY 2017 funding bill included $185 million for the 319 grant program, which is $20 million above the FY 2016 enacted level. The House’s bill proposed a funding level of $164.9 million, matching last year’s enacted level.
Farmworker Protections Are at Stake, Too
In addition to the provision blocking the Clean Water Rule in the House’s annual EPA funding bill, lawmakers also snuck in a provision that would block the agency from fully implementing its farmworker protection rule – The Worker Protection Standard (WPS) rule. WPS represents the first major revision to EPA’s regulation of farmer exposure to pesticides in nearly twenty-five years.
The House rider against WPS is directed at a clause in the rule that would require farm operators (at a farmworker or third party’s request) to turn over information regarding pesticide use. Opponents are against the option in the rule for third-party representation, which advocates say is necessary and would only be used in instances when farmworkers may not be able to request the information themselves (as in the case of a medical injury).
A 2014 draft version of WPS originally included a strong third-party clause, which also required farmers to turn over their pesticide use information within 15 days if requested. EPA initially removed the clause in response to opposition comments, but the agency added it back in before the final rule was published, after confirming that the arguments against the clause provided little new information to justify its removal.
The House’s EPA funding bill included a rider blocking the rule and was approved June 15 by the House Appropriations Committee. The Senate version of the bill (approved June 16) does not include the WPS rider.
What’s Next for EPA Appropriations?
Now that the House and Senate have both completed draft appropriations bills to fund the EPA at the committee level, the bills awaits full House and Senate floor time to move forward. Assuming each bill progresses, eventually both houses will need to negotiate a final funding bill. With legislative days running out in advance of the longer than usual summer congressional recess (to provide time for the party conventions), it is unlikely the bills will advance to the floor in June or July. The National Sustainable Agriculture Coalition (NSAC) will continue to track and report on what the appropriations process means for the Clean Water Rule, farmworker protections, and 319 funding in the weeks and months ahead.
More Background on Clean Water Rule
NSAC supports the EPA’s efforts to ensure both the public and farmers/ranchers have access to clean water. The Clean Water Rule provided much needed clarity for farmers, as well as critical protections for our natural resources, efforts which we wholeheartedly endorse. The intent of the rule is to clear up confusion around which waters are subject to EPA and the Army Corps of Engineers’ (“the Corps”) permitting requirements –a clarification which would greatly benefit farmers and landowners.
Currently, CWA prohibits the discharge of any pollutants, including dredged or fill material, into “navigable waters”, unless such activity is done in compliance with authorized permitting programs. Prior to the proposed rule, CWA defined “navigable waters” as “waters of the U.S.”, but this definition was murky and ultimately left it up to the EPA to define which bodies of water fell under that category. The new definition under the Clean Water Rule provided increased clarity regarding which bodies of water do, and which do not, qualify as jurisdictional.
The final rule followed a twice-extended public comment period, which included significant input from the agricultural community. We have been disheartened to see opponents of the Clean Water Rule attack this common-sense initiative with an endless stream of challenges, threats, and roadblocks. Good agricultural regulations must be clear and easily understood, which is what the Clean Water Rule attempts to do.
NSAC submitted comments on the proposed rule and encouraged the EPA to provide additional clarity for farmers, and we were largely pleased with the revisions that the agency made. Among several major revisions to the proposed rule, the final rule includes a new definition of “tributary”, which removed reference to “wetlands” from the definition. The rule also clarifies that wetlands can be jurisdictional if they are adjacent to jurisdictional water, but not because they are tributaries. EPA further revised the definition of “tributary” to include the presence of the physical indicators of a bed, bank, and ordinary high water mark, and it codified the definition of ordinary high water mark, which NSAC had recommended.
NSAC’s blog from last year provides a detailed analysis of the final rule.
Upcoming Court Challenges
Last fall a federal judge issued a nationwide stay on the rule, which means that the older, murkier version of the definition of “waters of the U.S.” is still in place across the country.
While the rule is on hold, the fight over its implementation is set to continue this summer in a series of legal battles. The 6th Circuit of Appeals recently set a briefing schedule, which pushes oral arguments in the case into and beyond February 2017. This means that the next administration will ultimately be tasked with arguing the merits of the case.
As these court challenges continue, we hope Congress will protect the Clean Water Rule in the legislature and pave the way for common-sense water protections that will benefit farmers and landowners across the country.
Categories: Conservation, Energy & Environment