June 16, 2015
On May 27, 2015, the US Environmental Protection Agency (EPA) announced it had finalized a rule to clarify the scope of the agency’s jurisdiction over “waters of the U.S.” under the Clean Water Act. The rule revises the existing definition of “waters of the US” for purposes of determining which bodies of water are subject to EPA and Army Corps of Engineers’ (the Corps) permitting requirements; for example, permits are required before a pollutant can be discharged into a jurisdictional water, or before a jurisdictional water, including a wetland, can be dredged or filled. In either case, the requirement to get a permit applies when the activity is done in jurisdictional water, or a “water of the US.”
As we’ve blogged in the past, the Clean Water Act definition of “water of the US” was murky to begin with, and has been thoroughly confused through several Supreme Court decisions addressing how EPA has interpreted “waters of the US” and extended jurisdiction over wetlands and other bodies of water. Through this final rule, EPA has sought to clear up the confusion that surrounds the issues of which waters are considered jurisdictional, and therefore which activities are subject to EPA or the Corps’ permitting requirements.
This final rule – an Obama Administration priority – follows a twice-extended public comment period. It received significant attention from the public and from members of Congress during the draft stage, and resulted in approximately 1 million comments to the docket.
Rulemaking Process and NSAC Analysis
The purpose of an agency rulemaking is to provide the public with notice and an opportunity to comment on the agency’s thinking while still in its draft stage. Given the strong and mixed reactions to the proposed rule, EPA engaged in extensive stakeholder outreach and twice extended the comment period to allow for maximum opportunity for public input. However, the more time EPA gave the public, the louder grew the voices of the rule’s opponents who continue to claim – despite repeated assurances to the contrary – that this rule amounts to a federal “power grab” of farmland.
NSAC supports the agency’s objectives to ensure clean water for public health and agricultural purposes, and believes this rule provides needed clarity for farmers as well as protections for our natural resources. We found certain aspects of the proposed rule in need of modification, and so we provided feedback to the agency on the proposed rule, suggesting modifications and definitions to add that would increase the clarity of the rule by addressing grey areas.
Unlike the most vocal opponents of the final rule – who, in all likelihood, would have been vocal opponents regardless of the outcome –we believe the agency has listened to the concerns of the public – particularly the agricultural community – and has responded with significant improvements to the rule that increase clarity as the rule intended.
In particular, we support the new definition of “tributary” which removes reference to “wetlands” from the definition, and instead provides a clearer explanation that wetlands can be jurisdictional if they are adjacent to a jurisdictional water, but not because they are tributaries. EPA further clarifies the definition of “tributary” to include the presence of the physical indicators of a bank, bed, and ordinary high water mark, and codifies the definition of ordinary high water mark as we had recommended.
We also urged the agency to also codify definitions of “intermittent” and “ephemeral” flow. The agency chose not to do so given their common scientific usage, but did provide an explanation of those terms by reference in the preamble to the rule.
The agency did remove reference to a “shallow subsurface connection” as part of the definition of “adjacent.” We were concerned that this term did not provide sufficient clarity because it had no clear parameters. We urged to agency to provide clear parameters for the term, or to remove the language from the definition. The agency chose the latter approach, which we support.
We also encouraged to the agency to include a definition of “ditch” in the regulations, which we believed would serve to clear up some of the confusion that persists in the final rule regarding which ditches are jurisdictional. The agency did not make this change in the final rule, and we would urge the agency to pursue additional clarification of this issue through guidance.
You can see a pre-publication version of the Final Rule here.
The rule will not come into effect until 60 days after it is published officially in the Federal Register.
Despite the fact that the agency conducted a robust rulemaking process, opponents of the rule have been stirring the anti-regulatory sentiment in Congress in an effort to stall what little progress the EPA has been able to make in ensuring the protection of our nation’s waterways. It is no secret that the many bodies of water in this country are severely polluted, and there is no denying the role that agriculture plays in waterway pollution. Unfortunately, EPA has continually come under fire for this new rule by some agricultural interests, and so EPA has repeatedly tried to assure the farming community that all exemptions under the Clean Water Act for normal farming practices remain intact, and that they have no desire to disrupt agriculture. Nevertheless, opponents will not be appeased, and continue to hurl vitriol and hyperbole, catching members of Congress in the storm.
In the last Congress, it seemed that any legislation attempting to stall the process was merely symbolic. In this current Congress, however, there may be more likelihood that we see Congress successfully intervene in the rulemaking process.
The full House has passed stand-alone legislation to force withdrawal of the rule, and the House Appropriations Committee included a policy rider in the Environment-Interior spending bill for FY 2016 that would restrict the use of EPA’s funds for the rule, effectively binding the agency’s hands from any effort to implement the new rule during the upcoming fiscal year. NSAC strongly opposes the corruption of the appropriations process by affixing such non-germane, legislative riders to spending bills. The White House came out strongly against this spending bill in this letter to Congress.
There is also a bill in the Senate, S. 1140, that was recently passed out of the Senate Environment and Public Works Committee. This bill would require EPA to withdraw the final rule and start the rulemaking process over under strict guidelines. Whether such a bill can muster the necessary sixty votes to override a likely Presidential veto remains to be seen. Senator Amy Klobuchar (D-MN), originally rumored to be on the fence about the issue and seen potentially as the critical 60th vote for the bill, recently stated that she would not support legislation to undo the rulemaking process.
NSAC also supports the rulemaking process going forward. We recognize that there are concerns with the implementation of this rule, but we believe that the proper place to ensure the rule is implemented in a way that provides producers with the information they need (EPA has promised to continue “engaging in productive conversations” with the farming community) while still allowing EPA to move toward a more defined scope of authority under the Clean Water Act and ensure protection of our nation’s waterways.
We fear Congress is falling victim to the overheated rhetoric that has surrounded this rule, and which continues to sow fear and confusion across the countryside. A far more productive approach would be to focus on boosting funding for EPA and the USDA Natural Resources Conservation Service to provide farmers and ranchers with the technical and financial assistance they need to understand and work with their water resources and wetlands.