January 14, 2016
Turning aside the opportunity to protect clean water protections for agriculture and public health, Congress has decidedly rejected the EPA’s attempt to clarify long-confusing jurisdictional definitions within the Clean Water Act. On Wednesday, January 12, the House voted to overturn the U.S. Environmental Protection Agency (EPA)’s Clean Water Rule and prevent any similar rules from being issued in the future.
The resolution of disapproval of the Clean Water Rule now heads to the White House where President Obama has made clear he will veto it. Neither the House nor Senate has anywhere close to the number of votes needed to override the veto, so the resolution will die and the dispute over the rule will remain for the foreseeable future tied up in litigation.
The House approved resolution 253-166 with the support of 241 Republicans and 12 Democrats (including 6 from the House Agriculture Committee). Interestingly, this was half the number of Democrats who supported a similar attempt to block the rule last year, indicating waning Democratic support for these largely symbolic, partisan votes against clean water.
A Refresher on the Clean Water Rule
The EPA finalized the contested rule, intended to clarify the scope of the agency’s jurisdiction over “waters of the US” under the Clean Water Act, in May, after an extensive public comment period. The rule briefly went into effect in August before courts put it on hold nationwide as legal challenges are considered.
The definition of “waters of the US” has been murky since its introduction, and has only been further confused following Supreme Court decisions that brought into question EPA’s interpretation of the phrase.
The intent of the Clean Water Rule was to clear up confusion around which waters were subject to EPA and Corps’ permitting requirements. This clarification is beneficial for farmers and landowners, as the Clean Water Act prohibits the discharge of any pollutants, including dredged or fill material, into “navigable waters” unless such an activity is done in compliance with authorized permitting programs.
Prior to the proposed rule, the Clean Water Act defined “navigable waters” as “waters of the United States,” but ultimately left it to the EPA to define which bodies of water fell within that category. The newly proposed definition provides increased clarity regarding which bodies of water do, and which do not, qualify as jurisdictional.
The National Sustainable Agriculture Coalition (NSAC) submitted comments on the proposed rule and encouraged the agencies to provide even further clarity, considering the impact the final rule would have on farmers.
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 clarifies that wetlands can be jurisdictional if they are adjacent to jurisdictional water, but not because they are tributaries. EPA further clarified 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 as NSAC had recommended.
Clearly Defining “Waters of the US” is a Win for Agriculture
NSAC supports the EPA’s mission to ensure clean water for public health and agricultural purposes and we believe this rule provides needed clarity for farmers as well as protections for natural resources.
While some opponents to the rule have argued that it amounts to a federal “power grab” of farmland, there are many in the agricultural community who recognize that the rule both preserves all existing permitting exemptions for normal farming practices (such as plowing, seeding, minor drainage, or ditch maintenance), and also represents an important step in curbing agriculture’s contribution to water pollution. These farmers believe that the rule is an essential tool for keeping the water clean, one that benefits farmers, their downstream neighbors, and the public equally. An eloquent farmer defense of the rule stresses how farmers, the environment, and the general public benefits from the new rule.
Continued Attacks on Clean Water
Despite a major effort throughout the most recent appropriations process to block the rule, the final funding bill for Fiscal Year (FY) 2016 did not include such a policy provision. The omission of the obstructionist rider was a victory for farmers, who are now one step closer to gaining clarity about which waterways and wetlands fall under the scope of the Clean Water Act.
It is our hope at NSAC that EPA is able to move forward with the implementation once the dust settles on the ongoing litigation. Clearly defining “waters of the US” is a critical step towards providing clarity for farmers and clean drinking water for all Americans. NSAC will continue to report on developments to this rule as they happen.
Categories: Conservation, Energy & Environment