The Senate Environment & Public Works Committee (EPW) moved legislation Wednesday through committee that would send the Waters of the U.S. rule back to the Environmental Protection Agency (EPA) and require the agency to consult directly with those impacted by the rule.
Two weeks prior, EPA issued its final rule that expands federal authority under the Clean Water Act by changing the definition of “waters of the United States.” Absent legislation to stop it, this new rule will go into effect later this summer. The legislation now awaits debate by the full Senate.
The Federal Water Quality Protection Act requires EPA and the Army Corps of Engineers to withdraw the current proposed rule, which has received considerable criticism from a variety of industries – including agriculture – and restart the full rulemaking process to develop a new rule in consultation with stakeholders, state partners and regulated entities.
Unlike the rule EPA issued, the Senate legislation requires that a revised rule EPA will not be able to claim the power to control land and water use based on use of water by birds or other animals, the seepage of water into the ground, water storage and the overland flow of flood water, explained EPW Committee Chairman Jim Inhofe (R., Okla.).
During the markup of the bill, Sen. John Barrasso (R., Wyo.) stated that the final rule, published on May 27, is actually worse than the proposed rule. “No matter what concessions the EPA has claimed, they have added new provisions that greatly expand their authority,” he said during the markup. “Instead of clarifying the difference between a stream and erosion of the land, the rule defines tributaries to include any place where EPA thinks it sees an ordinary high-water mark; what looks like - not what is - what looks like an ordinary high-water mark.”
Barrasso added that even worse than the tributary definition, the EPA proposes to make these decisions from their desks, using aerial photographs and laser-generated images, claiming a field visit isn’t necessary.
Agricultural groups have been opposed to the new rule. Although many groups took time to analyze the new proposal before expressing opposition to the final version, it now seems concerns remain with the final EPA version.
The National Pork Producers Council said it is still apprehensive that many every-day farming practices, including spreading manure, could be subject to Clean Water Act regulations that would require a permit. Currently, jurisdiction – based on several U.S. Supreme Court decisions – includes “navigable” waters and waters with a significant hydrologic connection to navigable waters.
Jay Vroom, president and CEO of CropLife America, stated, “The rule extends federal oversight into areas not noted before such as ‘prairie potholes’, increasing regulation while failing to make a real contribution to the protection of our water supply.”
While the rule underwent some changes during the Office of Management and Budget (OMB) review process, it still does not relieve the issues that the original rule created between agricultural practices and clean water policy, CropLife America said.
For example, the final rule creates conflicting guidelines under the modified “adjacent waters” category that exempt areas and, at the same time, state that they are jurisdictional on a case-by-case basis. The “adjacent waters” definition provides that waters being used for “established normal farming, ranching, and silviculture activities (33 U.S.C. 1344(f)) are not adjacent,” yet the preamble notes that waters in which normal farming, ranching and silviculture activities occur may still be determined to have a significant nexus on a case-specific basis, CLA added.
In mid-May the U.S. House of Representatives passed H.R. 1732 which also requires the EPA and Army Corps to go back to the drawing board on the water rule by a vote of 261-155. The White House has issued a veto threat on the House’s bill.