Editor's note: Story updated with more input from the office of U.S. Sen. John Boozman, R-Ark., and a comment from the Agricultural Council of Arkansas.
The Environmental Protection Agency issued Wednesday (May 27) what it called a “final” ruling on Clean Water Act regulations and said the new rules will not impact farmers and other private landowners. But several members of Arkansas’ Congressional delegation say they will work to ensure the ruling is not the last word on the subject.
In the 297-page ruling promulgated by the EPA and the civil works division of the U.S. Army, primarily result from U.S. Supreme Court rulings in 2001 and 2006 that limited previous EPA rulemaking and created areas of uncertainty with respect to jurisdiction and interpretation.
“The rule ensures that waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry,” noted a joint statement from the EPA and U.S. Army. “The rule is grounded in law and the latest science, and is shaped by public input. The rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions.”
The two groups said the rules were drafted with the input from more than 400 meetings with “stakeholders,” and the review of more than 1 million public comments. Key parts of the new ruling highlighted by the EPA and Army include:
• A Clean Water Act permit is only needed if a water is going to be polluted or destroyed;
• The Clean Water Rule only protects the types of waters that have historically been covered under the Clean Water Act. It does not regulate most ditches and does not regulate groundwater, shallow subsurface flows, or tile drains;
• It does not make changes to current policies on irrigation or water transfers or apply to erosion in a field; and
• The Clean Water Rule addresses the pollution and destruction of waterways – not land use or private property rights.
“Today's rule marks the beginning of a new era in the history of the Clean Water Act,” Assistant Secretary for the Army (Civil Works) Jo-Ellen Darcy said in the statement. “This rule responds to the public's demand for greater clarity, consistency, and predictability when making jurisdictional determinations. The result will be better public service nationwide."
The EPA also includes on its website eight “factsheets” about the new rules that cover agriculture, utilities, recreation and other areas.
FARM, PRIVATE LAND USE
The most controversial aspects of the anticipated final ruling were with respect to regulations of farmland and other private property. EPA and Army officials said the new ruling does not infringe upon farmers and does not create new rules for private property use.
“The final rule specifically recognizes the vital role that U.S. agriculture serves in providing food, fuel, and fiber at home and around the world. The rule does not create any new permitting requirements for America’s farmers. Activities like planting, harvesting, and moving livestock have long been exempt from Clean Water Act regulation, and the Clean Water Rule preserves those exemptions,” noted the EPA and Army.
But the American Farm Bureau Federation, Agricultural Council of Arkansas and members of Arkansas’ Congressional delegation beg to differ with assertions that the new rule will not harm private landowners.
“This proposed rule would dramatically expand the reach of extremely costly federal permitting requirements to cover countless land uses, including ordinary farming and ranching activities — even mowing grass in a ditch,” AFBF General Counsel Ellen Steen said in a statement. “Top-level EPA officials have portrayed farmers’ concerns as ‘ludicrous,’ when in fact they are perfectly valid. Farmers and other small business owners and land owners deserve better than misinformation from their government.”
The AFBF created a “Ditch the Rule” website focused entirely on the issue. In October 2014 the AFBF posted a “Trick or Truth” document on the website alleging that the EPA and Army “misstates key information about the proposed rule and its true impacts on farmers and ranchers, builders, local governments, and countless others.”
Farmers under the new rule will be required to seek permits for several activities, according to the AFBF, with such permits being costly and time-consuming.
“The Corps or EPA can take years to issue a permit, or they can decide not to issue one at all. Just the process of applying for a permit can be very burdensome, costing tens of thousands of dollars in consultant and legal fees,” the group noted.
Andrew Grobmyer, executive vice president of the Agricultural Council of Arkansas, said the new rules are an “enforcement and compliance nightmare.”
“This new regulation, if not mitigated by Congress or the courts, will undoubtedly cause new compliance burdens for agriculture, place farmers at risk of lawsuits, and make it more costly to our farmers to produce the food and fiber the world demands. We hope to work with our Congressional delegation to seek and create sensible government and private sector solutions to enhance water and air quality, soil health, and wildlife habitat,” Grobmyer said in a statement.
U.S. Sen. John Boozman, R-Ark., said he is working in the Senate to overturn the new rule and to pass the Federal Water Quality Protection Act which would “clarify the role of Washington bureaucrats.”
“This EPA overreach threatens farmers, ranchers and private landowners' ability to use their property. This rule will raise costs without providing clean water benefits, takes control away from states and increases uncertainty all while causing project delays as Arkansans try to figure out where this EPA power-grab applies,” Boozman said in a statement. “The agency believes that unless it controls all of our nation’s water, this resource is not protected. This couldn’t be further from the truth.”
When asked for an example of how the law could impact farmers, Boozman’s staff sent the following responses.
• “EPA or the Corps will look at aerial photos or the surrounding area to guess whether a rice pond was constructed in a stream or wetland, even if that construction took place 100 years ago, so they may still regulate rice ponds.”
• “The final rule does not exempt ditches used by agriculture to move irrigation water around. It only exempts ditches used to drain rainwater runoff. So the channels used to drain rice ponds may be jurisdictional.”
• “Even land that proves to not be jurisdictional will now undergo delays and analysis (for a jurisdictional determination) as landowners seek federal jurisdictional determinations on a much more frequent basis, which increases costs and discourages traditional farming activities.”
• When the “EPA says this will not affect farming, the agency is relying on some creative word-play (to put it generously) to try to back that up. EPA may ultimately realize that it can’t regulate a particular ditch on a farmer’s land, but only after the farmer has jumped through a number of new hoops to get that clearance.”
U.S. Sen. Tom Cotton, R-Ark., said the ruling is a “prime example of government overreach at its very worst.”
“These unprecedented new regulations will have a devastating impact on Arkansas. They further establish the EPA’s ability to regulate farmland, effectively tying farmer’s hands on everything from when to plant, how often they can run a tractor, and regulating mud puddles on their farms,” Cotton said in a statement.
When asked for an example in the new rule that allows the EPA to regulate mud puddles, Cotton’s staff pointed to page 19 of the new rule. That section notes: “The rule continues the current policy of regulating ditches that are constructed in tributaries or are relocated tributaries or, in certain circumstances drain wetlands, or that science clearly demonstrates are functioning as a tributary. These jurisdictional waters affect the chemical, physical, and biological integrity of downstream waters. The rule further reduces existing confusion and inconsistency regarding the regulation of ditches by explicitly excluding certain categories of ditches, such as ditches that flow only after precipitation. Further, the rule explicitly excludes from the definition of “waters of the United States” erosional features, including gullies, rills, and ephemeral features such as ephemeral streams that do not have a bed and banks and ordinary high water mark.”
COMMENTS FROM THE HOUSE
U.S. Rep. Steve Womack, R-Rogers, called on the Senate to vote on a House bill that would recall the ruling.
“The federal government should not be in the business of regulating every creek, stream, and puddle, and I find the sweeping Waters of the U.S. regulations – finalized in spite of significant stakeholder concern – extremely troubling,” Womack said in a statement. “The EPA has shown its cards; the agency will continue to act without regard to the impact on the Natural State and our industries, and Congress must intervene. I applaud the actions already taken by the House to prevent this egregious overreach and urge the Senate to act quickly to ensure these regulations are not implemented.”
U.S. Rep. Bruce Westerman, R-Hot Springs, said the “agency is overreaching and hurting Arkansas farmers, ranchers, and outdoor enthusiasts.” He also support efforts in the House to overturn the ruling.
U.S. Rep. Rick Crawford, R-Jonesboro, said the House has passed a bill to overturn the rule and also called on the Senate to vote on the bill.
“The ambiguous wording of Waters of the United States (WOTUS) rule could subject landowners, farmers, and ranchers to jurisdictional challenges and unprecedented levels of compliance costs. I strongly urge a thorough overhaul of the WOTUS rule that takes into consideration the hundreds of thousands of negative comments filed against it,” Crawford said in a statement. “The bipartisan House-passed Regulatory Integrity Protection Act (H.R. 1732) would send the rule back to the drawing board, and I hope the Senate moves quickly to pass this legislation."