WOTUS rule is broken; need for Congress to intervene - Nov. 17, 2015
“The Environmental Protection Agency’s (EPA) WOTUS (Waters of the United States) rule regulates small isolated wet spots, ditches, and low areas where water only flows when it rains. Congress never granted EPA the authority to regulate these areas or authorized the agencies to require permits for ordinary farming and ranching,” Don Parrish, American Farm Bureau Federation (AFBF) Regulatory Relations Director, said while speaking at the Wyoming Farm Bureau Annual Meeting Nov. 13 in Cody.
“There is broad bi-partisan understanding that this rule is broken and there is a tremendous need for Congress to intervene in this process,” Parrish continued.
“The rule is going to change the way in which the government impacts land use and the way you farm and ranch,” He said.
The WOTUS rule went into effect in all but 13 states on Aug. 28, 2015. A preliminary injunction was issued for the 13 states, including Wyoming, involved in the North Dakota case on Aug. 27, 2015. Then on Oct. 9, 2015 a nationwide stay of the WOTUS rule was issued to stop enforcement of the rule. The Wyoming Farm Bureau Federation and the American Farm Bureau Federation, among many other state Farm Bureaus, are involved in the litigation.
“The court has indicated the rule will likely be found to be illegal, but it could take years before that is finished,” Parrish explained.
Campaign Mode from Beginning
From day one, the EPA was in campaign mode. “The very first day they published this rule, they didn’t publish it in the Federal Register, they published it first on the internet and had 21 other organizations, who had never seen or read the regulations (371 single typed pages), come out and support the proposal,” Parrish explained.
The second part of the EPA’s campaign was to use social media. “The EPA contracted with an outside entity to build support of the rule by making people afraid that somebody is going to contaminate drinking water,” Parrish said. “1.8 million people used the Thunderclap social media platform that said “I Choose Clean Water.” This comment was made on a 371 page proposal they had not read; they just simply clicked on a button saying they support clean water.”
According to Parrish, the EPA also spent a lot of time outside of the official public record in meetings across the country, writing blogs and speeches so they could technically influence and mislead people as well as discredit critics.
“What they did with social media is indirectly ask the public to lobby the agency and congress,” He continued. “If they didn’t break anti-lobbying laws; they broke the spirit of the laws.”
Breakdown of comments
Of the 1,081,166 “comments” received by the EPA, only 3,000 were substantive comments. There were 1,050,000 comments from 198 mass comment campaigns that could fit on four typed pages and 20,238 individual comments that were not substantive. Additionally, 200 foreign nations submitted comments in support of the rule.
“Ultimately they got over a million people who never had any stake in this regulation and whom had never read the rule to say they supported the rule. It is very misleading to say one million people supported this rule,” Parrish stated. “We all support clean water, but this isn’t about clean water as their campaign led people to believe.”
According to Parrish, only seven states supported the rule. “A couple of states were mixed and a couple of states had no comment on the rule,” Parrish explained.
Impact of rule
The WOTUS rule expands jurisdiction over many landscape features found on private land and common agricultural practices will come under regulation with this new law.
Parrish emphasized it is necessary for farmers and ranchers to try and identify WOTUS on land they farm. “This regulation is going to have a very long tail,” He stated. “The last thing the EPA wants to do is put all their cards on the table right now. They want this issue to develop over time so they can wait until Congress loses interest and moves on to other issues thus forgetting about WOTUS.”
Parrish explained the rule can be retroactively enforced meaning both government and citizen suits can reach back five years for an alleged violation. The penalties for violating the rule are $37,500 per day.
“They (EPA) have written themselves a blank check to say whatever they want to say is an indicator and can be regulated,” Parrish explained. “When they first started with the rule they were going to regulate tributaries. When they finalized the rule they added indicators of tributaries which makes it more broad.”
“Think dry washes,” He continued. “This is huge because just about every field in this country has features that EPA can categorize as WOTUS with their broad definitions under this rule. The landowner will be required to apply for a permit that the EPA doesn’t have to issue or stop using the land.”
Using mechanical applicators, moving dirt or changing use of the land are all farming activities that will trigger CWA liabilities. Farm ponds are also a potential trigger of liability.
“The farm ponds have to be isolated to not be regulated,” Parrish explained. “You can’t have something like an exit pipe or an overflow pipe because then if there is a connection that pond may go from being a pond to a point source and need a discharge permit.”
“We are dealing with an agency that went way out of bounds and we need Congress to put a stop to this overreach,” Parrish concluded.
The Wyoming Farm Bureau Federation is the state’s largest general agriculture organization. The primary goals of the organization are to protect private property rights and help members achieve an equitable return on their investment. On the web, www.wyfb.org.