In recent weeks, the Obama Administration's proposed "waters of the United States" rule, as well an accompanying interpretive rule for normal agricultural activities, have been publicly criticized. Even EPA Administrator Gina McCarthy has gone on the record admitting,
"I have never proposed anything that I thought would be so well-received as this that has fallen totally flat on its face." EPA Administrator Gina McCarthy, speaking before the Kansas City Agribusiness Council on July 10, 2014
EPA claims that their regulatory proposals do not affect various types of waterbodies. However, the text of the proposals demonstrates that EPA either doesn't understand the language they drafted, or they are intentionally trying to mislead the American public. Below are six specific claims made by EPA, all of which are refuted by language in the rule.
EPA claims that the proposal:
• Does not regulate new types of ditches
o But the rule says: For the first time, the proposed rule explicitly includes ditches unless they fall within one of two exceptions based on location and flow. Many ditches throughout the country will be unable to meet the rule's limited exemption provision and thus will become subject to federal Clean Water Act (CWA) jurisdiction under the rule, contrary to the Agencies' claims.
• Does not regulate activities on land
o But the rule says: Under the CWA federal jurisdiction extends to "navigable waters" which are defined as the "waters of the United States." Water bodies deemed "waters of the United States" are subject to permitting mandates, federal enforcement mechanisms, mitigation procedures, and citizen suits. A wide variety of activities on land require permits when they impact a "water of the United States" including, home building and construction, agriculture, ranching, and mining. The CWA does not provide a guaranteed right to a permit and if an applicant is denied, that individual or business will be unable to move forward with the planned project, thus allowing the EPA and Corps to essentially dictate the list of permissible land use activities afforded a particular landowner.
• Does not apply to groundwater
o But the rule says: The rule claims to exclude groundwater, but language in the rule also states a waterbody may be a "water of the United States" if it has a "shallow subsurface hydrological connection" to other jurisdictional waters. This language suggests that Agencies may intend to use groundwater as a basis for CWA jurisdiction.
• Does not affect stock ponds
o But the rule says: If a stock pond is natural or used for purposes other than those listed by EPA, the stock pond could be considered a "water of the United States." The rule says that ponds are exempt only if they are "artificial" and used "exclusively" for stock watering, irrigation, settling basins, or rice growing.
• Does not require permits for normal farming activities, like moving cattle
o But the rule says: More farming activities will require CWA permits under the agencies' interpretive rule for normal agricultural activities. Included in the interpretive rule is a "prescribed grazing" requirement, so that if the federal government doesn't like the way a rancher grazes cattle, they can force the rancher to either obtain a Clean Water Act permit or pay up to $37,500 per day in fines.
• Does not regulate puddles
o But the rule says: The actual text of the rule is so sweeping that virtually any wet area could potentially be considered a "water of the United States." Under the rule, small and isolated waterbodies may be considered a "water of the United States" when, in combination with other similarly situated waters, they have a significant nexus to a traditional navigable water. This provides no effective limit to federal regulatory authority and will encourage litigious environmental groups to sue property owners no matter the supposed intentions of EPA. In fact, certain environmental groups are already using the rule's language to bring citizen suits based on the broad authority provided, and there's little reason to doubt that puddles could attract abusive litigation in the near future if the rule is finalized.
Sen. Vitter and the EPW Republicans have been actively engaged with EPA and the Corps since the "waters of the U.S." rule was released. They have been concerned with how the rule would impact the economy and affect private property rights.