Farm interests from around the country are pushing back on a recently finalized federal water rule after an analysis by a key trade group concluded that the rule “creates even more risk and uncertainty” for those who work the land.
Efforts are underway in Congress to redo and sharply limit the impact of what was known initially as the “Waters of the United States” rule and was designed to help federal officials clarify and simplify which bodies of water fall under the control of the Clean Water Act, the pivotal 1972 environmental law.
While those efforts have broad support in Congress, they might not have enough support to override a presidential veto – sending the rule’s ultimate fate to be battled out in court.
The rule is of vital importance to farmers, since it has the potential to alter how they manage their land – requiring permits, for example, if activities would affect covered areas. It was finalized last month after more than a year of controversy and touted by the U.S. Environmental Protection Agency and the Army Corps of Engineers as an important step forward in keeping the nation’s waters clean.
From the start, though, farmers said it went too far. And late last week, the American Farm Bureau Federation completed its analysis of the rule, finding that the complicated final version “is even broader than the proposed rule.”
One example is the rule’s definition of tributaries, which the Farm Bureau said is so expansive that “land features may be deemed to be tributaries . . . even if they are invisible to the landowner and even if they no longer exist on the landscape.”
Blake Hurst, president of the Missouri Farm Bureau, said that “anybody who moves dirt in order to do their business is going to be affected.” He also has problems with the way the EPA handled the rule-making process, saying the agency embarked on a political campaign to discredit those opposed to the rule and abused the law that governs rule-making.
The EPA and proponents of the water rule say that the complaints by farmers and others were thoroughly hashed out during months of public comment and hearings and that the claims of overreach are wildly inflated.
That said, the options for farm interests – as well as home builders and other industries that have come out against the rule – are limited.
The House of Representatives passed a bill in May that would roll back the rule, and a similar bill last week passed out of a committee in the Senate. That bill now moves to the full Senate.
But there, it faces stiff odds. Although Republicans control the Senate and dozens of senators are listed as co-sponsors for one of the competing anti-water rule bills, “It’s unlikely there will be a veto-proof majority,” Hurst said.
The White House said in a statement of policy in April in response to the House bill: “The final rule should be allowed to proceed. . . . If the president were presented with H.R. 1732, his senior advisers would recommend that he veto the bill.”
That leaves the courts and advocates on both sides of the issue expecting farm or other industries to file suit to stop the EPA from enforcing the rule. But how long such suits may take to wind through the courts – or whether the rule will be suspended while the courts determine its fate – is unclear.
For those reasons, one of the advocates for the rule, Jon Devine, an attorney for the Natural Resources Defense Council, said he thinks that the anti-rule forces will get nowhere.
“At the end of the day, I think this is an effort doomed – fortunately – to fail,” he said. “I am extremely confident that claims the agencies protected too much will not win.”
The rule was proposed by the agencies to simplify and clarify the meaning of the 1972 Clean Water Act. That law covers rivers, lakes and year-round wetlands. But the law is less clear about certain streams that dry up part of the year, or about wetlands that are only wet during springtime months.
The Clean Water Act requires permits for developing or discharging into covered waters, making the rule of vital importance to farmers and to landowners in general.