Now is the Time to Weigh in on Proposed Clean Water Rule
By Cyndie Shearing, American Farm Bureau Federation “Whenever the people are well informed, they can be trusted with their own government; that whenever things get so far wrong as to attract their notice, they may be relied on to set them to rights” has long been attributed to Thomas Jefferson, author of the Declaration of Independence and our nation’s third president. When he wrote those words in 1789, Jefferson could not have imagined how true they would ring more than 200 years later, when the Environmental Protection Agency and U.S. Army Corps of Engineers proposed an overreaching “waters of the U.S.” rule in 2015 that was more about controlling land than protecting water. Fortunately, at the end of 2018, after years of litigation and controversy, the agencies proposed a new rule that provides farmers and ranchers with Clean Water and Clear Rules. Now EPA and the Corps want to hear directly from members of the public – including farmers, ranchers, landowners and others who may be subject to regulation – to make sure the new Clean Water Rule provides clear and easily understood guidelines. But with the comment period on the proposed new rule closing on April 15, there’s no time to lose. To have a voice in this process, it’s important to submit your comments online now at www.fb.org/cleanwater. EPA’s administrator has stated he wants the new Clean Water Rule to work for agriculture and all of America. Below are some key reasons to be optimistic about it:
- The proposed new rule provides clarity, regulatory certainty and protects water resources, while respecting the federal-state balance that Congress struck in the Clean Water Act. It alleviates unpredictable and inconsistent case-by-case determinations of which waters fall under the agencies’ jurisdiction. It also brings an end to the decades-long trend of persistent federal government overreach that cannot be reconciled with either congressional intent or judicial precedent.
- This proposed new “waters of the U.S.” definition is grounded in the Clean Water Act. It’s also consistent with Supreme Court precedent. And it helps correct past agency practice, guidance and interpretations that improperly expanded the scope of federal authority under the CWA.
- The proposed rule eliminates much of the uncertainty, ambiguity and inconsistency that characterized previous definitions related to the scope of EPA and the Corps’ jurisdiction. The proposal also appropriately places the burden on the government, not landowners, to show jurisdiction in cases where historic evidence is needed.
- The proposal appropriately defines tributaries to include only those streams that contribute perennial or intermittent (as opposed to occasional or ephemeral) flows to a traditional navigable water. The focus on the well-understood concepts of ephemeral, intermittent and perennial flow allows landowners and regulators to more readily identify tributaries subject to CWA jurisdiction.
- Under the proposed rule, wetlands adjacent to other jurisdictional waters (traditional navigable waters, tributaries, ditches, lakes, ponds and impoundments) would fall under EPA jurisdiction. With this “adjacent wetlands” definition in place, agencies asserting jurisdiction over isolated, intrastate, non-navigable waters is no longer a possibility.
- The proposal reaffirms the “prior converted cropland” exclusion, which grandfathered in many acres of cropland and exempted them from federal jurisdiction.