Arizona Agriculture Encouraged by Congress’ Moves to Possibly Reign in EPA

By Julie Murphree, Arizona Farm Bureau: Just a few weeks ago, Rep. Glenn ‘GT’ Thompson, Chairman of the House Agriculture Committee’s Conservation and Forestry Subcommittee, held a public hearing to review the definition of “waters of the United States” proposed rule and its impact on rural America. Exactly one week later, the Senate Ag Committee held a similar hearing. Is this possibly the beginning of a pushback on the Environmental Protection Agency’s (EPA) and the U.S. Army Corps of Engineers’ (Corps) proposed Waters of the U.S. Rule? Let’s hope so.

The proposed Waters of the U.S. Rule, “unless dramatically altered,” will result in potential Clean Water Act liability and federal permit requirements for a tremendous number of commonplace and essential farming, ranching and forestry practices nationwide, according to the American Farm Bureau Federation and other agriculture organizations including Arizona Farm Bureau.

In testimony during the hearing on March 17th, AFBF General Counsel Ellen Steen told a House Agriculture subcommittee that the WOTUS rule will create enormous uncertainty and vulnerability for farmers and ranchers nationwide.

“It is impossible to know how many farmers, ranchers and forest landowners will be visited by [EPA] enforcement staff or will be sued by citizen plaintiffs’ lawyers—and it is impossible to know when those inspections and lawsuits will happen,” Steen said. “But what is certain is that a vast number of common, responsible farming, ranching and forestry practices that occur today without the need for a federal permit would be highly vulnerable to Clean Water Act enforcement under this rule.”

According to AFBF’s general counsel, several statutory exemptions demonstrate a clear determination by Congress not to impose Clean Water Act regulation on ordinary farming and ranching activities. However, agency and judicial interpretations over the past several decades have significantly limited the agricultural exemptions that have traditionally insulated farming and ranching from unnecessary Clean Water Act permit requirements.

“Much of the remaining benefit of those exemptions would be eliminated by an expansive interpretation of ‘waters of the United States’ to cover ditches and drainage paths that run across and nearby farm and pasture lands,” Steen testified. “The result would be wide-scale litigation risk and potential Clean Water Act liability for innumerable routine farming and ranching activities that occur today without the need for cumbersome and costly Clean Water Act permits.”

Steen explained that because ditches and ephemeral drainages are ubiquitous on farm and ranch lands—running alongside and even within farm fields and pastures—“the proposed rule will make it impossible for many farmers to apply fertilizer or crop protection products to those fields without triggering Clean Water Act ‘pollutant’ discharge liability and permit requirements.”

“A Clean Water Act pollutant discharge to waters of the U.S. arguably would occur each time even a molecule of fertilizer or pesticide falls into a jurisdictional ditch, ephemeral drainage or low spot -- even if the feature is dry at the time of the purported ‘discharge,’” Steen told the subcommittee. For this reason, farmers’ options under the rule are limited.

According to Steen, “they can either continue farming, but under a cloud of uncertainty and risk, they can take on the complexity, cost and equal uncertainty of Clean Water Act permitting or they can try to avoid doing anything near ditches, small wetlands, or stormwater drainage paths on their lands. It’s a no-win situation for farmers and ranchers.”

Here in Arizona, we’re hoping this is the beginning of the end of EPA’s proposed rule. “The proposed rule re-defining WOTUS is a disaster for everyone – not just those of us in agriculture,” said Arizona Farm Bureau’s First Vice President Stefanie Smallhouse, who has testified at the state level on this issue to Arizona’s Congressional delegation and has also been interviewed on FOX News regarding WOTUS.  “It is encouraging to see that our elected officials are responding to our calls of foul play on the part of the EPA in creating new laws through rule making, bypassing the authority of Congress. The Clean Water Act was created with the intention of safeguarding the quality of our water, not for use as a bat to bully farmers and ranchers over land use. This reigning in of the agency is a bipartisan effort, which that in itself shows the magnitude of the egregious nature of EPA’s proposed rule.”

Arizona Farm Bureau also submitted comments on the rule during the comment period. Additionally, our Congressional delegation from Arizona has addressed this issue on numerous occasions. 

Hearing from the farmers

Exactly one week later, a Nebraska Farm Bureau member spoke to the Senate Ag Committee along similar lines saying the EPA’s water rule goes too far.

A proposal to massively expand the Environmental Protection Agency’s (EPA) and the U.S. Army Corps of Engineers’ (Corps) powers under the federal Clean Water Act (CWA) should focus on finding common sense solutions to clean water, not give the federal government blanket authority for regulating all waters everywhere, according to testimony offered by Morrill County (Nebraska) Farm Bureau President Jeff Metz before the U.S. Senate Agriculture Committee on March 24th.

“Let me be very clear – everyone wants clean water,” said Metz. “However, this proposed rule isn’t about clean water. This rule is clearly focused on expanding the role of federal regulatory agencies into the daily lives of people around the country.”

Metz, a farmer and rancher from Angora, Nebraska, was invited to testify at the hearing before the full U.S. Senate Agriculture Committee chaired by U.S. Sen. Pat Roberts (R-Kan.). The focal point of the hearing was to gather stakeholder input on the impacts of the proposed “Waters of the U.S.” rule.

“I have seasonal draws, valleys and canyons as well as ponds and other natural depressions on my land that will at times fill or flow with water during precipitation events. Many rarely, if ever, have flow that reaches a flowing stream,” said Metz. “This rule could require that I obtain a federal permit in order to plow, apply crop protection products, graze cattle or even build a fence in or around these areas.”

Metz noted that adding another layer of red tape to agriculture would do little to protect the environment, but cost him time and money, and in a worst case scenario, prevent him from using his own land.

“The federal government is under no obligation to even give me a permit,” said Metz. “This rule would create uncertainty and expand liability exposure for Nebraska farmers, despite the fact we have a state agency that has been responsible for protecting these waters for nearly 40 years.”

Some history

Enacted in 1972, the Clean Water Act (CWA) established a federal-state government partnership to better regulate and manage the nation’s waters through a range of pollution and control programs. The CWA states that it is the “policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of State to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the [EPA] Administrator in the exercise of his authority under this Act.”

Members of the House Committee on Agriculture during their hearing on the 17th asserted that the EPA had acted on its own, without input from the states and stakeholders, to broaden the scope of the CWA, threatening the livelihood of farmers, ranchers and rural America.

“Despite strong bipartisan opposition from Congress and the public, the Obama Administration has acted to expand its federal authority.  The EPA’s proposed rule could have serious consequences for our nation and prove to be a severe detriment to our economy, with a particularly strong impact in rural counties.  Hasty movement from the EPA will only invite costly litigation, burden states and counties with compliance costs, and create obstacles to building and replacing our national infrastructure,” said Chairman Thompson.

“Rather than strengthening the law, this rule creates more confusion.  These actions highlight a disturbing pattern of an Administration that is out of touch with farmers, ranchers and rural land owners.  The testimony received today further outlines the need for the EPA to either pull the rule and move for further consultation with states, counties, and stakeholders, or re-propose the rule and allow a new round of public comment.  There is too much on the line to continue down the current path,” added Thompson.

Chairman Conaway said at the hearing, “I strongly support legislation to block the Waters of the United States rule and hope we can put legislation to this effect on the president’s desk, whether as a stand-alone bill, as part of a larger measure, or both.  The better route, of course, is for EPA and the Corps to pull this regulation, work with state and local stakeholders to develop a new and proper set of recommendations, and submit these recommendations to Congress for consideration and approval.”

The agencies are expected to release a final version of the “Waters” rule later this year.

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