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Capitol Hill Voices Join Call for EPA to Ditch Proposed Clean Water Act Rule

Hundreds of Republican and Democratic lawmakers are joining farmers, ranchers and other landowners in challenging EPA's recently proposed "Waters of the U.S." rule, which  could ultimately lead to the unlawful expansion of federal regulation to cover routine farming and ranching practices as well as other common private land uses, such as building homes.


Published on April 21 in the Federal Register, the more-than-111,000-word "Waters of the U.S." proposed rule reflects EPA's latest interpretation of the 1972 Clean Water Act.


"This rule is an end-run around congressional intent and rulings by the U.S. Supreme Court, alike, and it's clearly not only farmers and ranchers who feel this way," said Dale Moore, American Farm Bureau Federation executive director of public policy. "We appreciate the many lawmakers from across the country who are standing up for agriculture, small businesses and rural communities in telling EPA it's time to ditch this rule."


In early May, 231 House members, led by U.S. Representatives Chris Collins (R-N.Y.) and Kurt Schrader (D-Ore.), sent a letter to EPA and the U.S. Army Corp of Engineers urging them to back off EPA's unsound proposal to expand federal reach under the Clean Water Act.


"The rule is flawed in a number of ways," the lawmakers wrote. "The most problematic of these flaws concerns the significant expansion of areas defined as 'waters of the U.S.' by effectively removing the word 'navigable' from the definition of the CWA. Based on a legally and scientifically unsound view of the 'significant nexus' concept espoused by Justice Kennedy, the [proposed] rule would place features such as ditches, ephemeral drainages, ponds (natural or man-made), prairie potholes, seeps, flood plains, and other occasionally or seasonally wet areas under federal control."


Supreme Court Justice Anthony Kennedy used the term "significant nexus" in his concurring opinion to Rapanos v. United States. 


Last week, the Senate Western and Congressional Western caucuses sent a joint letter to EPA Administrator Gina McCarthy. Like the House letter and others sent by individual members, the caucuses pointed out the significant costs of the proposed rule for farmers, ranchers, homeowners and businesses.  The costs would come in the form of additional permit application expenses, mitigation requirements and environmental analysis-and this presumes the agencies would issue a request permit in the first place. Violating these requirements could cost individual landowners thousands of dollars per day.


"The threat of ruinous penalties for alleged noncompliance with the CWA is also likely to become more common given the proposed rule's expansive approach. For example, the EPA's disputed classification of a small, local creek as a 'water of the United States' could cost as much as $187,500 per day in civil penalties for Wyoming resident Andrew Johnson. Similar uncertainty established under the proposed rule will ensure that expanding federal control over intrastate waters will substantially interfere with the ability of individual landowners to use their property," wrote the caucuses, which are led by Senate Western Caucus Chairman John Barrasso (R-Wyo.) and Congressional Western Caucus co-chairs Steve Pearce (R-N.M.) and Cynthia Lummis (R-Wyo.).


To help Farm Bureau members and others express the need for EPA to "Ditch the Rule," Farm Bureau has launched a Ditch the Rule website at ditchtherule.fb.org. Focused on topics and analysis related to the Environmental Protection Agency and Army Corp of Engineers' recent release of the "waters of the U.S." proposed rule, the easy-to-navigate site includes several sections: Take Action, Go Social, Find Answers and Get Resources. Visitors may also sign up to learn more, comment on the proposed rule and send tweets using the hashtag #DitchTheRule.