'Waters of the U.S.' mess
By Seymour Klierly
The tough question facing President Barack Obama’s Environmental Protection Agency (EPA) is whether to “Ditch the Myth” or “Ditch the Rule?” The EPA is under pressure after proposing a joint rule with the Army Corps of Engineers in March that would redefine the Waters of the United States (WOTUS) under the Clean Water Act (CWA). When announcing the rule, EPA Administrator Gina McCarthy said, “We are clarifying protection for the upstream waters that are absolutely vital to downstream communities.”
After reading the proposed rule and the regulatory fine print, many agriculture organizations began to publicly criticize the proposal. The American Farm Bureau Federation went so far as to create a social media campaign with the slogan “Ditch the Rule.” According to its website, “the EPA has said that it is clarifying the scope of the CWA. However, EPA’s ‘clarification’ is also a broad expansion of the types of waters and lands that would be subject to federal permit requirements and limits on farming practices and other land-uses.”
While some pushback from agriculture and allied organizations was expected, the extent of the negativity has backed the EPA into a corner. The agency has responded by launching its own social media campaign relating to the rule, choosing to “Ditch the Myth.” The effort includes graphics and “facts that emphasize this proposed rule cuts through red tape to make normal farming practices easier while also ensuring that waters are clean for human health, communities and the economy.”
The biggest blow to the proposed rule came from an unexpected source inside the federal government. The Office of Advocacy within the Small Business Administration (SBA) recently outlined major concerns with the impact of the rule and advised the agencies to withdraw it. According to the SBA, “the rule will have a direct and potentially costly impact on small businesses. The limited economic analysis which the agencies submitted with the rule provides ample evidence of a potentially significant economic impact.”
After already extending the public comment period for the proposal once from July to October, the EPA announced the agency would extend it again until Nov. 14. After the comment period, the agency will have to respond to all submitted comments before deciding whether or not to issue a final rule. While the agency could change the proposal or withdraw it entirely, no one realistically expects either to happen.
Sen. Mike Johanns, R-NE, was not impressed with the latest delay. “Though today’s announcement is little more than election-year politics from an Administration worried about retaining control of the Senate, I invite Nebraskans who recognize the rule as a power grab to take advantage of the opportunity to air their grievances,” Johanns said. “The proposed rule could have enormous consequences for farmers and ranchers. I hope the agency is flooded with additional comments that bring much-needed common sense to an out-of-touch EPA.”
Instead of moving ahead, the EPA has punted to November. Despite the delays, neither side appears ready to ditch their case just yet.
Editor’s note: Seymour Klierly writes Washington Whispers for the Journal from inside the Beltway.