Senate makes statement on WOTUS

A total of 59 senators vote for an amendment which limits how EPA establishes waters of the U.S. definition.

The Senate made a strong statement against the Environmental Protection Agency’s proposed waters of the U.S. definition by approving an amendment as part of its budget resolution.

Nearly reaching the 60 vote threshold, a total of 59 senators voted in favor of the amendment which will “establish bright lines for Federal jurisdiction, and to create clear and unambiguous exemptions for features” the EPA administrator or Army Corps of Engineers secretary claims they are not seeking to regulate.

“The Administration claims it has no intention of using this rule to regulate things like drainage ditches and isolated ponds. My amendment simply holds the Administration to their word. This will give our farmers, ranchers and small business owners the certainty and peace of mind they deserve,” said Sen. Johan Barrasso (R., Wyo.) who introduced the amendment.

Barrasso’s amendment #347 establishes a spending-neutral reserve fund to ensure federal jurisdiction under the Clean Water Act is focused on water quality, which may include limiting federal jurisdiction based on certain criteria.

The amendment specifically limits how the Environmental Protection Agency or the Army Corps of Engineers determine what is connected to the waters of the United States. It also prevents the agencies on making a determination based on the movement of birds, mammals and insects.

It also prevents determinations based on the movement of water through the ground – or the movement of rain water, or snow melt, over the land outside of a channel. Finally it prohibits the Water Pollution Control Act from extending to things like puddles, isolated ponds, roadside ditches, and wastewater systems.

Although all of the dissenting members were Democrats, it does illustrate that if a final rule from EPA expected out yet this spring does not address concerns expressed by farmers, another vote could stop EPA in its tracks. Senate Agriculture Committee ranking member Debbie Stabenow (D., Mich.) did not vote in favor of the Barrasso amendment, but has been advocating changes that weigh the concerns of the farming community.

Bob Stallman, president of the American Farm Bureau Federation, said the vote sends a “resounding message” that the proposed rule is “flawed in both substance and process.”

Because it was attached to the budget resolution, the bill is not binding. Budget resolutions only help guide each chamber within its appropriations process. This is the first time the Senate has taken up such a vote, with similar riders included in House-passed bills.

Concerns continue

A Senate Agriculture Committee hearing held earlier this week focused on stakeholder impacts on the proposed rule featured two panels of witnesses comprised of state and local officials responsible for the administration and enforcement of the proposed Clean Water Act changes and key agricultural industry representatives impacted by the regulation.

Many senators pushed for the EPA to redo their rule with the additional clarifications and allow for additional public comment on those changes. However, EPA administrator Gina McCarthy said she felt the initial proposed rule was written broad enough that an additional round of comments isn’t necessary.

Senate Agriculture Committee chairman Pat Roberts (R., Kan.) criticized the EPA for moving ahead on the proposed rule despite the “unanimous outcry from a broad coalition of stakeholders and industries.” He also said McCarthy’s latest attempt to change the name of the rule from “Waters of the United States” to the “Clean Water Rule” also doesn’t take into account needed changes. “If you want to protect clean water, it is time to listen and change the rule in a manner that allows for public input and collaboration and is effective for farmers, ranchers and rural America.”

In July 2014 Senate Agriculture Committee ranking member Debbie Stabenow (D., Mich.) joined Democrat colleagues asking for clarifications on the rule, asking for better definitions on key issues that directly affect agriculture, including terms like ponds, ditches and floodplains.
“Based on the response I received and several discussions I have had with the EPA, I believe that appropriate changes will be made to ensure that our agricultural producers get the certainty they need and deserve,” Stabenow said at the hearing.

In written testimony submitted to both the Senate Agriculture and House Agriculture Committees which held a hearing on the rule the week prior, the National Pork Producers Council explained that existing regulations on agriculture are more than adequate to maintain and improve water quality.

“We all need and want more jurisdictional clarity, and we understand the need for a rule that addresses this,” said NPPC in its submitted testimony. “But starting from the question ‘what is jurisdictional’ is functionally backward. The goal is clean water, not the forever-expansive growth of federal jurisdiction over every drop of water and all land features and activities that affect that water, merely for the sake of jurisdiction.”

The organization pointed out that pork operations already are regulated under the Clean Water Act’s Concentrated Animal Feeding Operation rule, which regulates how pork producers store, manage, handle and use manure for crop production. Additionally, farmers are adopting and updating practices to prevent or minimize storm water discharges, not only as part of caring for their fields and conducting efficient operations but under a section of the CWA. Furthermore, under the so-called Swampbuster provisions of various Farm Bills, farmers are subject to severe penalties if they drain, dredge, fill or level agricultural wetlands for the purpose of producing a commodity. 

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