Legislative Issues

At our Leadership Seminar speaker, Joe Cain, spoke about a proposed rule that will greatly effect how farms are able to manage their own land in regards to fencing, fertilization, weed control and more.

To see the complete EPA Waters of the U.S. Proposed Rule go to: EPA-HQ-OW-2011-0880-0001.

A brief summary of the rule from the Kentucky Farm Bureau Federation is below. You can find the summary and more information at: The KY Farm Bureau Federation actions and alerts page.

If you would like to speak wth your legislator regarding this or other topics, you can find your legislator’s contact information at: http://lrc.ky.gov/Find%20Your%20Legislator/Find%20Your%20Legislator.html.

WOTUS Talking Points

INTRODUCTION:

Congress passed the Clean Water Act in 1972, with the goal of improving water quality across the nation.  To achieve that goal, the CWA established a system of cooperative federalism that preserves primary state authority over land and water uses, but prohibits certain “discharges” into “navigable waters” from a “point source” (i.e., a pipe or other conveyance) unless authorized by federal permit.  The law says that “navigable waters” are “waters of the United States.”  Over the years, the U.S. Supreme Court has established that this includes interstate waters, plus waters that are navigable, wetlands adjacent to navigable waters and other waters with a substantial connection to navigable waters.  State and local governments have jurisdiction over smaller, more remote waters, such as many ponds and isolated wetlands.

 

Two sections of the law have particular impacts on agriculture.  Section 404 allows the U.S. Corps of Engineers to issue permits for discharges of “dredge and fill” material into navigable waters.  Section 402 establishes the National Pollutant Discharge Elimination System (NPDES) permitting program, in which EPA or states (with EPA oversight) can issue permits for discharges of other pollutants into navigable waters.

 

GENERAL/SCOPE:

  • The EPA and U.S. Army Corps of Engineers are aggressively, inappropriately trying to expand their regulatory reach.
  • The proposed rule, on its surface, appears to ignore the two most recent U.S. Supreme Court decisions (SWANCC in 2001 and Rapanos in 2006). Both cases told EPA that it had exceeded its statutory authority to regulate areas never intended by Congress.
  • State and local governments already oversee small, remote and isolated waters.
  • The “waters of the U.S.” proposed rule is an end-run around Congress and two Supreme Court rulings.
  • The proposed rule would significantly expand the scope of “navigable waters” subject to Clean Water Act jurisdiction by regulating small and remote “waters”, many of which are not even wet or considered “waters” under any common understanding of that word.
  • Congress, not federal agencies, enacts laws. When Congress passed the Clean Water Act, it clearly wrote the law to apply to navigable waters.  Is a small ditch navigable?  Is a stock pond navigable?  Is a puddle in your backyard navigable?
  • Coverage includes areas that aren’t even wet most of the time, such as low spots that hold water only after a heavy rainfall.
  • The proposal is based on a skewed interpretation of scientific studies, viewing all hydrologic connections as creating a “significant nexus.” The report is referred to as the Connectivity Report.

 

IMPACTS:

  • Because of the proposed rule, farmers and other landowners will face a tremendous roadblock to ordinary land-use activities, from building a fence to spraying or pulling weeds and insect control.
  • The rule would impact whether landowners could build fences, apply fertilizer, control weeds, mow grass, prune trees,,,,and so on and so on. The list continues on.
  • There is no legal right to a Clean Water Act discharge permit. EPA would have ultimate control to deny a permit…and a farmer’s ability to farm.
  • Farmers cannot wait for a federal permit to protect crops form pests and weeds. Permits can take months, if they are ever approved.  Landowners face fines of up to $37,500 per violation, per day for undertaking many activities in a newly designated “water of the U.S.” without getting a permit.
  • The proposed rule is nothing short of a license for EPA, the Corps to micromanage land use across the country. The rule would also bring NRCS into a regulatory role because practices would have to meet NRCS criteria.
  • By linking exemptions to NRCS standards, EPA also as cleverly created a “Trojan Horse” of sorts. NRCS standards can be changed without public notice, with limited or no public input; the exemptions can be withdrawn at any time.  As a result, the agency has effectively undermined the law Congress wrote to grant farmers exemptions from Section 404 for normal, ongoing activities.
  • The proposed rule will impact more than farming. Home building, energy production and other land uses would also be affected.
  • EPA and the Corps have said the WOTUS rule provides clarity and certainty. The only thing that is clear and certain is that, under this rule, it will be more difficult to farm, build homes or make changes to the land, even if the changes would benefit the environment.

 

EXEMPTIONS:

  • The exemptions EPA and USDA claim will protect farmers only apply to long-standing operations (continuous operation at the location since 1977), not new or expanded farms.
  • The exemptions don’t cover weed control, fertilizer use and other common farm practices. The agricultural activities listed as being exempt only pertain to the Section 404 “dredge and fill” permit program.  They provide absolutely no protection from potential liability and Section 402 NPDES permit requirements for discharges of other “pollutants.”  This is critical because with the expansion of jurisdiction proposed by EPA, every day weed control, fertilizer applications or any number of other common farm activities may well trigger Clean Water Act liability and Section 402 permit requirements.  Moreover, with this expanded jurisdiction, the possibility of citizen lawsuits is amplified and even if EPA says it will not require a permit.  It allows environmental activists an opportunity to go to Federal court and sue for new or different standards.
  • The exemptions have existed for years, but have been narrowed by EPA guidance issued with the proposed rule. These exemptions were granted by Congress for normal activities at ongoing operations.  EPA has created nothing new.
  • Farmers cannot depend on exemptions. Just as it did with the new guidance, EPA could change or take away the exemptions at any time.
  • The exemptions do not change the fact that EPA and the Corps are expanding their control over more and more private land.
  • These narrow exemptions will not protect farmers from new restrictions (or prohibitions) on farming practices that will arise from the establishment of water quality standards and total maximum daily loads for the ditches, ephemeral streams and other features EPA now plans to sweep into federal jurisdiction.

 

WHAT CAN YOU DO?

  • Strongly oppose the rule change. Explain how the rule would affect you, and others.  Many people simply do not realize what is in the rule, or how it would affect them.
  • Send comments to the EPA. Comments can be submitted electronically at gov.  The deadline for submitting comments is October 20, 2014.  Search for EPA Docket No:  EPA-HQ-OW-2011-0880
  • Spread the word! Tell fellow farmers and friends about the rule and ask them to submit comments too.  Make sure your voice is heard.