TOP administrative officials from the Environmental Protection Agency and Army Corps of Engineers spent nearly three hours last Wednesday defending the Administration's proposed "waters of the United States" rule before the House transportation and infrastructure subcommittee on water resources and environment.
The discussion was dominated by opposition to the rule as members and stakeholders stressed their concerns about the presumed expansion of EPA's jurisdiction under the proposed rule.
Another common thread among questions for the administrative officials — from representatives who were farmers themselves or expressed concerns voiced by the agricultural community — was about how the rule could require additional permitting, limit farmers' ability to voluntarily take measures to improve the environment and the rights of private landowners.
EPA deputy administrator Robert Perciasepe became rattled at the hearing when he came under fire from Rep. Don Young (R., Alaska), who asked if EPA knew of one state that supported the rule. Perciasepe was unable to provide an answer, although in questioning later on, he said state water authorities have been "very supportive," but he hasn't received any specific comments from states.
Subcommittee chairman Rep. Bob Gibbs (R., Ohio) noted in his opening comments that he fears that the rule will undermine the federal/state partnership.
Also, many comments throughout the hearing echoed more calmly the concerns first voiced by Young regarding the lack of states' involvement in drafting the proposed rule.
Perciasepe tried to defend the Administration's actions under the rule-making that he said is designed to reduce regulatory burdens for farmers while also working to improve clarity and preserve existing Clean Water Act exemptions and exclusions for agriculture.
Perciasepe emphasized that the rule continues to exempt normal agricultural activities.
"If you are on a piece of land, you can continue to plow it, plant it and harvest it. Nothing in this rule is going to change that," he said.
Perciasepe added that if the agencies haven't done enough to adequately exclude normal agricultural activities, the intention of the final rule is to make that happen.
Jo-Ellen Darcy, assistant secretary of the Corps, also came to the rule's defense. When asked whether the ambiguity members claimed was a result of the rule would lead to additional lawsuits, Darcy asserted that the proposed rule does "bring additional clarity" and will result in fewer lawsuits.
Rep. Markwayne Mullin (R., Okla.), a farmer on the committee, asked if existing permits would stay with the land or holder of the permit. Darcy said the permits, of which most agricultural practices are exempt, would stay with the land if the owner passed away or sold the land.
"If there's ambiguity, it's something we need to clarify," she testified.
To further clarify, Darcy's counsel in the room agreed that the law, as currently written, would not allow for a transfer of permit with the transfer of land to another owner. The officials also tried to offer some explanation on the exclusion of ditches from EPA jurisdiction.
Perciasepe said excavated dryland ditches, such as highway drainage ditches, would be exempt and added that the rule specifically excludes ditches, no matter if they meet a test such as the significant nexus or not.
During the stakeholder panel, American Farm Bureau Federation president Bob Stallman said the Administration's statements about ditches are "not true."
"Ditches are meant to carry water, which is why most would be regulated," Stallman explained.
His written testimony went into detail about how the proposed rule would categorically regulate as tributaries all ditches that ever carry any amount of water that eventually flows over any distance through any number of other ditches to a navigable water.
Last Tuesday, EPA did announce that it is providing an additional 91 days to comment on the proposed rule, until Oct. 20, and it will accept comments on the accompanying interpretive rule until July 7.
The House agriculture subcommittee on conservation, energy and forestry is scheduled to hold a hearing June 19 to review the interpretive rule regarding the applicability of Clean Water Act agricultural exemptions.
Representatives questioned why EPA moved forward on the rule before receiving a report from the Scientific Advisory Board. Perciasepe assured that the board will complete its review and make it available while the rule-making docket is still open.
"We won't finalize the rule without their final review," Perciasepe promised.
Some members called for the agencies to completely abandon the proposed rule, while others said they would like to see the rule-making process move forward and take into account the comments the agencies likely will receive.