Governors, Attorneys General say CWA Rule a Legal Threat to Farmers (via DTN)

Since the release of the proposed waters of the U.S. rule, the EPA has maintained it is simply codifying those waters that already are jurisdictional, and that it narrows down the scope of those waters covered with new definitions, and farmers have nothing to fear if they don’t already need permits.

A group of governors and state attorneys general are unconvinced. As thousands of comments continue to pour in on the proposed rule — at last count exceeding 400,000 — governors and state attorneys general from across the country have asked the EPA to withdraw the rule in public comments submitted to the agency Wednesday. EPA extended the public comment period deadline from Oct. 20 to Nov. 14 this week, essentially in an attempt to fulfill a promise made to Congress this year that the work of a scientific advisory board looking at connectivity science would complete its work before the rule was finalized.

While EPA Administrator Gina McCarthy visited a farm in eastern Missouri this summer and struck a conciliatory tone in a speech to the Agricultural Business Council of Kansas City — asking for input from farmers and others in attendance so as promote understanding of the rule — the agency still has not scheduled or held public listening sessions in the Midwest or anywhere in farm country for that matter.

Farmers interviewed by DTN continue to say they are confused by the rule and have received no clarification from EPA.

In the comment letter to EPA, the group of governors and attorneys general said the rule has created uncertainty in the agriculture community.

“The proposed rule’s scope is truly breathtaking,” they said in the letter. “The rule introduces terms such as ‘tributary,’ ‘riparian area,’ and ‘flood plain’ and then defines these terms extremely broadly, in order to declare that large amounts of intrastate land and waters are always within the agencies’ authority.”

Attorneys general signing the letter include Patrick Morrisey, West Virginia; Jon Bruning, Nebraska; E. Scott Pruitt, Oklahoma; Luther Strange, Alabama; Michael C. Geraghty, Alaska; Samuel S. Olens, Georgia; Derek Schmidt, Kansas; James D. “Buddy” Caldwell, Louisiana; Wayne Stenehjem, North Dakota; Alan Wilson, South Carolina; and Marty J. Jackley, South Dakota.

Governors signing on include Iowa’s Terry E. Branstad, Sam Brownback of Kansas, Phil Bryant in Mississippi, David Heineman of Nebraska, Pat McCrory in North Carolina, and Nikki Haley of South Carolina.

“The rule then pairs that already capacious coverage with a virtually limitless catch-all such that almost no water or occasional wet land is ever safe from federal regulation,” the letter said. “The rule seeks to bring within the agencies’ power every water and land that happens to lie within giant floodplains on the supposition that those waters and lands may connect to national waters after a once-in-decade rainstorm.

“It sweeps in roadside ditches that are dry most of the year so long as those ditches have a bank and a minimum amount of water flow at some points in the year. It captures little creeks that happen to lie within what the agencies may define as a ‘riparian area’ and covers many little ponds, ditches and streams. And it gives farmers and homeowners no certainty that their farms and backyards are ever safe from federal regulation.”

The governors and attorneys general said the rule “disregards the statutory requirement mandating respect for state primacy in the area of land and water preservation and instead makes the federal government the primary regulator of much of intrastate waters and sometimes wet land in the United States.”

Many farmers continue to question whether they will need — for the first time — to apply for Clean Water Act permits with the new rule. EPA Administrator Gina McCarthy said this summer permits would not be necessary if they’re not required now.

The governors and attorneys general said they believe the rule puts farmers in potential legal jeopardy.

“The proposed rule treats numerous isolated bodies of water as subject to the agencies’ jurisdiction, resulting in landowners having to seek permits or face substantial fines and criminal enforcement actions,” they said. “Nor must land have water on it permanently, seasonally, or even yearly for it to be a ‘water’ regulated under the act. And if a farmer makes a single mistake, perhaps not realizing that his land is covered under the CWA’s permit requirements, he could be subject to thousands of dollars in fines and even prison time.”

Comments can be mailed to EPA at: EPA, Mail Code 2822T, 1200 Pennsylvania Ave. NW., Washington, DC 20460. Attention: Docket ID No. EPA-HQ-OW-2011-0880.

Comments can be submitted online here, http://tinyurl.com/…

Read the governors’ and attorneys general’s comments here, http://tinyurl.com/…

Follow Todd Neeley on Twitter @toddneeleyDTN

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