WASHINGTON, D.C.– Because it has “numerous and substantial flaws,” a rule proposed by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers intended to clarify their authority under the federal Clean Water Act (CWA) over various waters should be withdrawn, said the National Pork Producers Council in comments filed late Friday.
Currently, the agencies’ jurisdiction – based on several U.S. Supreme Court decisions – includes “navigable” waters and waters with a significant hydrologic connection to navigable waters. The proposed “Waters of the United States” (WOTUS) rule would broaden that to include, among other water bodies, intermittent and ephemeral streams such as the kind farmers use for drainage and irrigation. It also would cover lands adjacent to such waters.
“The rule was supposed to bring clarity to what are and what are not water bodies regulated by the federal government, but it fails to do that,” said NPPC President Dr. Howard Hill, a pork producer from Cambridge, Iowa. “While pork producers appreciate the efforts of EPA and the Corps of Engineers to define their jurisdiction, the proposed rule will create many more problems than it theoretically will solve.”
Under the proposed rule, tributaries, impoundments of tributaries, wetlands and wet areas “adjacent” to those waters are without exception defined as WOTUS; ditches, with two exceptions, are considered tributaries and, therefore, categorically WOTUS, regardless of the quantity, duration or frequency of water flowing in them; and determinations on whether “other” waters are WOTUS would be made on a case-by-case basis.
According to analyses by agricultural organizations, including NPPC, and federal agencies, the rule would encompass millions of miles of streams and adjacent lands, subjecting any activity near or on them – including, for farmers, applying fertilizers and pesticides and (potentially) planting crops – to CWA permitting. The regulation also would expose farmers to citizen lawsuits, alleging, for example, that ditches on cropland should be regulated under the CWA.
“EPA and the Corps of Engineers should withdraw the WOTUS rule, work with agriculture to craft something that reflects real on-farm conditions and propose a new rule,” Hill said.
At least, said NPPC in its comments, after considering public comments and making any changes to the rule, the agencies should reissue the regulation prior to finalizing it.
Source: NPPC