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EPA Waters Rule: A Cloudy Future

The political forecast coming from Washington Thursday: Cloudy.

That’s how leaders of the American Farm Bureau Federation view the recently released final EPA rule on Waters of the U.S.

After the group's staff pored over the preamble to the final rule, Farm Bureau President Bob Stallman said Thursday that it’s worse than the EPA’s original proposal.

Stallman said the EPA definition of a tributary has been broadened to include landscape features that may not even be visible to the human eye. Farm Bureau is concerned that farmers and ranchers would have to get an EPA permit to apply farm chemicals on ephemeral waterways. And, Stallman said, it could cost $40,000 to find out from the agency if the rule applies to your land. 

“Farmers remain under a large cloud of uncertainty,” Stallman told reporters Thursday.

The rule that extends EPA control over waterways would apply to runoff from within 1,500 feet of those waterways, added Farm Bureau’s general counsel, Ellen Steen. And it could apply to practices on land within 4,000 feet, determined on a case-by-case basis. If farmers violate the rules, they could face “tens of thousands of dollars” in fines, she said.

“You face potential enforcement by the government and potential enforcement from citizen groups,” Steen said. “It’s a big cloud of risk and potential liability.”

Regulation of navigable waters of the U.S. is part of the Clean Water Act, passed in 1972. Until now, normal farming practices have been exempt and EPA Administrator Gina McCarthy has said that’s still the case with the new rule. When the proposed rule came out in March of 2014, environmental groups and fishing organizations welcomed it. Most farm groups did not. 

The new rule itself faces a cloudy future. 

Last month the House of Representatives approved a bill that would require EPA to start over again with its rulemaking process, which Farm Bureau says did not respond to agricultural community worries.

This week, the Senate Environment and Public Works Committee approved a similar bill that has 38 cosponsors, including three Democrats, Senators Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, and Joe Manchin of West Virginia.

The White House has threatened to veto that legislation.

When asked if Farm Bureau will sue the EPA to stop the rule, Stallman told that Farm Bureau hopes Congress will be able to stop it. 

If not, Steen added, “It’s very likely that we’ll be filing suit.” 

Farm Bureau’s analysis of the Waters of the U.S. rule can be found here.  

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