CONCERNS persist over the proposed rule from the Environmental Protection Agency and U.S. Army Corps of Engineers defining "waters of the United States."
The House Small Business Committee held a hearing May 29 on the rule's impact on small businesses. Chairman Sam Graves (R., Mo.) said the rule, as currently drafted, could extend the regulatory reach of the Clean Water Act to thousands of small streams, ditches, ponds and other isolate waters, some of which may have little or no connection to traditionally navigable waters.
"The agencies claim that the proposed rule will increase clarity as to which waters are subject to Clean Water Act jurisdiction," Graves said. "However, this proposed rule creates more confusion, not less. Terms like 'neighboring,' 'floodplain,' 'riparian area,' 'tributary' and 'significant nexus' are vaguely defined and fail to clarify where Clean Water Act jurisdiction will end."
Jack Field, a cattle rancher from Yakima, Wash., and executive vice president of the Washington Cattlemen's Assn., testified that he believes the proposed rule has the potential to affect every aspect of his operation and dictate land use activities.
He added that he feels confident in saying he believes the rule will actually have a "detrimental impact on water quality" because it will discourage ranchers from implementing conservation practices that are designed to protect water quality.
The National Cattlemen's Beef Assn. believes increased liability will chill landowner participation in conservation activities by making the Natural Resources Conservation Service (NRCS) a regulatory compliance agency.
Field testified that the EPA/Corps interpretive rule would make NRCS standards mandatory for all conservation activities, regardless of whether they are voluntary or cost-shared.
Field said if he had been required to follow NRCS standards to put up a fence in a pasture, his costs would have jumped from $1,400 to $1,700 because his cost-share project did not meet the required NRCS specifications. While $300 doesn't seem like much of a difference, he said spread over hundreds of acres, it can really add up.
Graves said while this proposed rule clearly will have significant consequences for small businesses, EPA and the Corps failed to assess those impacts.
"Had the agencies conducted outreach to and gotten input from small businesses, as required by the Regulatory Flexibility Act, perhaps they would have identified and fixed some of the problems with the rule before it was proposed," he said.
Field testified that despite what EPA is saying, the agency "did not have a meaningful dialogue with the small business community as a whole," and it is "appalling the agencies could assert that this regulation will not have a 'significant economic impact on a substantial number of small entities.'"
On behalf of the Waters Advocacy Council, University of California-Berkeley economist David Sunding presented a new analysis that documents how EPA excluded costs, underrepresented jurisdictional areas and used flawed methods to arrive at much lower economic costs for the proposed rule.
Sunding's analysis also notes that the lack of transparency in the report makes it difficult to understand or replicate EPA's calculations, examine the agency's assumptions or understand discrepancies in its results.
Sunding concluded that the errors in EPA's analysis are so extensive as to render it useless for determining the true costs of the rule.
On June 4, Sen. Mike Johanns (R., Neb.) took to the Senate floor to urge EPA to withdraw the proposal, saying there's still an opportunity to pull the rule and admit that the agency went too far.
Johanns said if EPA Administrator Gina McCarthy "is serious about having a relationship with ag producers, it would send a powerful signal to withdraw from this misguided approach. Call a timeout, and mean it when you say you want to listen."
More than 70 food and agriculture stakeholder groups sent a letter to EPA, the Corps and the U.S. Department of Agriculture requesting more time to comment on EPA's proposed interpretive rule on waters of the U.S.
The organizations are asking for an additional 90 days beyond the July 21 deadline to submit comments on the proposed rule, or 90 days after EPA releases its "Connectivity Report," which is supposed to serve as the scientific basis for any expansion of Clean Water Act jurisdiction.
The June 5 deadline to submit comments on the interpretive rule regarding accepted conservation practices has been extended to July 7.