If federal agencies are left the task of developing implementation guidance for the Waters of the U.S. rule, the result will be a continuation of the rule’s “liabilities, confusion and chaos.” Issuing guidance can’t fix a broken rule, according to a letter farm groups sent to members of the Senate who voted to oppose bipartisan legislation (S. 1140) seeking to revise the rule.
The groups encouraged the Senators to support any new effort in the Senate “to direct the agencies not to implement this rule and initiate a new, more responsible, balanced and lawful rulemaking.”
Rather than voting to proceed to legislation that would dismantle the rule in its entirety and undermine key environmental protections earlier in November, Sen. Angus King (I-Maine), led 10 of his colleagues in calling on the EPA to work with farmers to get the rule right.
“I believe it is the responsibility of the EPA to provide more clear and concise guidance on how this rule will work in the real world,” he stated. King said although he didn’t support the bill on the Senate floor if EPA fails to offer farmers guidance, “I will not hesitate to support a bill that will amend or change the rule so that it does.”
The agricultural groups hope to provide the needed pressure to get those votes to rethink their position on S. 1140 or other efforts like it should it present themselves. The Senate fell three votes short of the 60-threshold needed to advance debate on the bill and prevent cloture.
Major commodity groups who signed onto the letter include the American Farm Bureau Federation, National Cattlemen’s Beef Assn., National Corn Growers Assn., National Council of Farmer Cooperatives, National Pork Producers Council, National Turkey Federation, United Egg Producers and the U.S. Poultry and Egg Assn. A total of 35 groups total signed on to the letter.
According to the letter, if the Environmental Protection Agency and the Army Corps of Engineers are allowed to issue guidance for the implementation of the WOTUS rule, such guidance will be of no assistance to address the rules flaws, since many stem directly from the language used by the agencies in the final rule.
The final WOTUS rule contains “flaws and ambiguities that create confusion and uncertainty rather than provide clarity,” according to the letter. The rule also includes “vague terms and concepts, despite the numerous comments received” and fails to define a number of key terms that are “critical for determining whether a feature is a regulated ‘water of the United States.’”
The letter pointed out that the confusion and inconsistencies will produce similar results in the field and the nation’s courts. Already, the rule is has been challenged in multiple district and appeals courts in lawsuits brought by many dozens of states and stakeholders across the country.
The final rule’s issues are not superficial, interpretational matters that can be corrected through guidance, the letter states. Guidance “will not stop agency overreach as the rule language itself is what matters; agency personnel now and in the future and the legal system will ultimately rely on what the law says, as it is now stated in the final rule.”
In an interview with Sen. Pat Roberts (R, Kan.) he referenced the EPA’s ability to call on environmental organizations to support their rulemaking. EPA administrator Gina McCarthy’s claim of 90% of comments being “supportive” of the rule “influenced an awful lot of votes,” Roberts said. But the 10% of comments were from stakeholders who identified the implications the rule could have.
In the end, the Senate’s failed vote on sending WOTUS back to the drawing board was a vote against production agriculture. “We have to work as hard as we can to tell our side of the story,” Roberts said. But as for the last round, it wasn’t enough in regards to what EPA has already cooked up.