EPA Abused Rulemaking Process, AFBF General Counsel Steen Tells Senate

By Julie Murphree, Arizona Farm Bureau: The EPA abused and distorted the normal rulemaking process to pre-determine the outcome of its highly controversial “Waters of the U.S.” rule, American Farm Bureau Federation (AFBF) General Counsel Ellen Steen told the Senate Judiciary Committee yesterday. In the meantime, AFBF also released documents outlining how the EPA’s Waters of the U.S. rule will give the agency sweeping powers to regulate land use despite a body of law clearly prohibiting such overreach.

Instead of inviting and openly considering public input, the EPA conducted an aggressive advocacy campaign to obscure the on-the-ground impact of the rule and to smear groups, like Farm Bureau, that dared to explain those impacts to the public, Steen told the committee. 

“The notice-and-comment procedure for rulemaking is designed to ensure that agencies take honest account of the thoughts and concerns of the regulated public,” Steen said. “Legitimate concerns over how the rule would affect agriculture, in particular, were subtly twisted and then dismissed as ‘silly’ and ‘ludicrous’ and ‘myths.’ Public statements from the agency’s highest officials made it clear that the agency was not genuinely open to considering objections to the rule.”

The agency also made use of new social media tools such as “Thunderclap” to gin up well-intended but ill-informed support for the rule among the lay public. Later, agency officials pointed to the resulting emails, petition signatures, postcards  and other non-substantive mass comments to contend that “the public” supported the rule, even though the vast majority of substantive comments—by state and local governments, business owners, and organizations representing virtually every segment of the U.S. economy—opposed the rule.

“Regardless of whether you supported, opposed, or never heard of that rule, you should shudder to think that this is how controversial regulations will be developed in the age of social media,” Steen said. “Agencies must strive to maintain an open mind throughout the rulemaking process—and to inform rather than indoctrinate and obfuscate—even when policy issues have become controversial and politicized.”

In Arizona, First Vice President for Arizona Farm Bureau Stefanie Smallhouse shares similar concerns. "The whole purpose of this rule making was to provide clarification to landowners so that we can follow the law," said Smallhouse. "The final rule is more vague and contradictory than the proposed rule which is hard to believe. The only clarity provided in this whole process has been that the EPA gave no creedence to the many landowners who provided substantial comments versus the carbon copy support the rule received from social media blasts. I have no confidence in the ability of the agencies to enforce this rule fairly and hope that Congressional action to gain control over this rogue process will be swift...after all we have food and fiber to grow. This cannot be acheived with desktop tools."

Smallhouse, a rancher in southern Arizona, has sent comments to the EPA and also testified before Arizona's Congressional delegation regarding the rule and the impact it would have on her ranch.

In the meantime, Alarmed by the agency’s actions, the House of Representatives recently voted to prohibit the EPA from enacting the rule. A similar bill is moving through the Senate and could come to a floor vote within weeks.

The controversial WOTUS rule gives federal agencies new powers to regulate many normal farming, ranching and business activities, making it the largest federal overreach in memory.

The Federal Water Quality Protection Act, S. 1140, would force EPA and U.S. Army Corps of Engineers to scrap its own, extreme interpretation of the Clean Water Act and return to the drawing board, this time to craft a new rule that would fall within the parameters of Congress’ intent. The EPA and Army Corps would be required to take into consideration the valid concerns of farmers, ranchers, home builders and others who would be affected by the new rule.

“Thousands of farmers, ranchers and land owners raised numerous concerns about the rule during the formal public comment period, but looking at the final rule it’s clear no one at EPA was listening,” American Farm Bureau Federation President Bob Stallman said. “Farmers and ranchers are committed to protecting the land and resources we use to raise the food, fuel and fiber we all consume. We’re grateful that congressional lawmakers are willing to step up to safeguard both farmers and their land.”

The measure would require a comment period on the revised proposed rule of no fewer than 120 days and a final rule published no later than Dec. 31, 2016.

“We thank Chairman Inhofe and all the other committee members who voted for this legislation,” Stallman said. “We also urge the Senate to pass this measure soon. The sooner Congress acts, the sooner the agencies can re-craft a rule that more accurately reflects the will of Congress and respects the concerns of all affected parties.”

The Farm Bureau analysis, now available online, makes available to the public details the EPA has refused to address in public meetings over the past year. The documents are available as PDF attachments.

“Our analysis shows yet again how unwise, extreme and unlawful this rule is,” American Farm Bureau Federation President Bob Stallman said. “Our public affairs specialists and legal team have assembled the best analysis available anywhere, and their conclusions are sobering: Despite months of comments and innumerable complaints, the Waters of the U.S. proposal is even worse than before.”

The WOTUS rule, first released in draft form in April, 2014, has garnered fierce opposition from farmers, ranchers and land owners of all kinds. Dozens of states and countless municipalities oppose the measure since it would federalize regulation already handled at the local level. Just as important is the rule’s radical view of “water” which, in its view, should encompass the vast majority of land in the United States since it surrounds actual water that may or may not be protected under the Clean Water Act.

The full text of Ellen Steen’s testimony can be found here: http://www.fb.org/tmp/uploads/Steen_Senate_Judiciary_Testimony15-0610.pdf

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