An 88-page regulatory proposal designed to “clarify” federal jurisdiction of “waters of the United States” is sowing opposition in the agricultural community, provoking calls for Congress to step in and force the U.S. Environmental Protection Agency to withdraw the rule.
The Obama administration, acting through EPA, claims regulatory uncertainty in the wake of two recent Supreme Court rulings gives it authority to increase the number and kind of streams and wetlands that are subject to federal regulation under the Clean Water Act (CWA). The two Supreme Court decisions, however, rebuked prior EPA water grabs and restricted EPA regulatory authority.
Restricting Agricultural ‘Exemptions’
Additionally, EPA is proposing a parallel “interpretive rule” that will limit the traditional farming practices exempt from EPA’s proposal. EPA has identified 56 such exemptions, but under the proposal the practices must be carried out in accordance with standards set by the Department of Agriculture’s Natural Resources Conservation Service (NRCS).
Farmers and agricultural trade associations have noted some of the 56 practices EPA identified currently do not require permits, and they say they fear the NRCS is being transformed from a conservation service promoting voluntary stewardship into a regulatory body. A coalition of more than 90 farm organizations nationwide has criticized EPA’s proposed interpretive rule.
Turning Legal Defeats into Mandates
EPA justified its proposed regulatory action by citing two recent Supreme Court decisions that restricted its authority. In Rapanos v. United States (2006), the Supreme Court rebuked EPA for overreaching in attempting to regulate isolated wetlands. In an earlier ruling, Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (2001), the Supreme Court ruled EPA overstepped its bounds in attempting to regulate the discharge of dredged and fill material into what EPA claimed were “navigable waters of the United States” under section 404 of the Clean Water Act.
Despite losing both cases, EPA claims ambiguities in the rulings give it greater authority than ever before to regulate private land and isolated, intermittent bodies of water.
Midwestern Farmers Oppose
In July, EPA Administrator Gina McCarthy embarked on a public relations blitz to the Midwest, where she tried to counter some of the blistering criticism that has come her way. Her efforts, however, merely antagonized Midwestern farmers. For example, agricultural groups in Missouri expressed displeasure over being excluded from the tour and that the press was barred from attending the one meeting they had with McCarthy.
According to the American Farm Bureau Federation, during her tour McCarthy “alternated between derision and expressions of sympathy with farmers” and accused farmers’ groups of “enjoy[ing] the anxiety that’s been created.”
Even fairly liberal newspapers such as the Kansas City Star criticized EPA’s new proposals.
“The EPA’s latest proposed regulations have failed the test of being clear to the public,” the Star editorial board wrote.
“Many farmers don’t trust the EPA or McCarthy’s soothing words,” the Star explained. “The proposed rule needs to be rewritten to spell out exactly what is changing—but also clearly focus on what’s staying the same for the majority of farmers.”
Congressional Action Blocked
Two bills in the U.S. House of Representatives would prohibit EPA from moving forward with its proposed rules. The Democrat-controlled Senate, however, is unlikely to approve—or even be allowed to vote on—such a bill.
“With this, and other regulatory initiatives addressing climate change, EPA is circumventing Congress and making law on its own,” said Craig Rucker, executive director of the Committee for a Constructive Tomorrow.
“Congress has steadfastly refused to give EPA the power to impose itself on farmers in this fashion—and with good reason,” Rucker explained. “One wonders how many EPA bureaucrats, including Gina McCarthy, have ever set foot on a farm, much less have any inkling how a farm operates.”
"It is the height of arrogance and intransigence for EPA to use two Supreme Court defeats as justification to grab even more power then ever," said Jay Lehr, science director for the Heartland Institute, which publishes Environment & Climate News.
"Bonner R. Cohen, Ph. D., (firstname.lastname@example.org ) is a senior fellow at the National Center for Public Policy Research.