Water rule comes under fire

House subcommittee holds 3.5 hour hearing on EPA's proposed waters of the U.S. rule.

Wednesday top administrative officials from the Environmental Protection Agency and Army Corps of Engineers spent nearly three hours defending the Administration’s proposed waters of the U.S. rule before the House Transportation and Infrastructure Committee subcommittee on Water Resources and Environment.

The discussion was dominated by opposition of the rule as members and stakeholders stressed their concerns on the presumed expansion of jurisdiction under the proposed rules. Another common thread among those questioning the administrative officials were representatives who were farmers themselves or expressed the concerns voiced by the agricultural community about how the rule could require additional permitting, limit farmers’ ability to voluntary take measures to improve the environment and the rights of private landowners.

Robert Perciasepe, EPA deputy administrator, started off questioning rattled when he came under attack from Alaskan Republican Rep. Don Young who asked Perciasepe if EPA had one state who was supportive of the rule, of which Perciasepe was unable to provide. Later on in questioning he said state water authorities have been “very supportive” but he hasn’t received any specific comments from states.

Rep. Bob Gibbs (R., Ohio), subcommittee chairman, noted in his opening comments he feared the rule would undermine the federal-state partnership. And 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 rulemaking that he said is designed to reduce regulatory burden for farmers while also working to improve clarity and preserve existing Clean Water Act exemptions and exclusions for agriculture.

He said the rule continues to exempt normal agricultural activities. “If you area 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 get it in there.

Jo-Ellen Darcy, assistant secretary of the Army Corps of Engineers, also came under questioning defending the rule. When asked whether the ambiguity that members claimed was a result of the rule would result in additional lawsuits, Darcy said 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. Upon further clarification, Darcy’s counsel in the room agreed that as currently written the law 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 exclusions of ditches from EPA jurisdiction. Perciasepe said excavated dryland ditches, such as highway drainage ditches, would be exempt.

During the stakeholder panel, American Farm Bureau Federation president Bob Stallman said the administration’s statements about ditches are “not true.” He explained, “Ditches are meant to carry water, which is why most would be regulated.”

His written testimony went into detail 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.

Tuesday EPA did announce an additional 91 days to comment on the proposed rule (until Oct. 20) and until July 7 to comment on the accompanying interpretive rule.

Representatives did question why EPA moved forward on the rule without the report back from the Scientific Advisory Board.  Perciasepe assured that the board will complete its review and make it available while the rulemaking docket is still open.

“We won’t finalize the rule without their final review,” Perciasepe promised. Two prior peer reviews were done prior to the rule proposal release, he added.

Some members called for a complete abandonment of the proposed rule, while others said they would like to see the rulemaking process move forward and take into account the anticipated comments the agencies likely will receive.  

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