Inside D.C.

Does WOTUS need reworking, or is it all about “legacy?”

It’s the height of understatement to call “controversial” EPA’s rule making extending its Clean Water Act (CWA) authority – and that of the U.S. Army Corps of Engineers – to all “waters of the U.S. (WOTUS).”  From the American Farm Bureau Federation (AFBF) making WOTUS its number on regulatory priority, to the federal Small Business Administration (SBA) recommending EPA withdraw the rule making and do some serious small business impact analysis, nearly all of agriculture, industry and local and state governments say the rule making is wrongheaded and badly written.

At the heart of the regulatory controversy is the word “navigable.”  EPA/Corps authority is currently limited to regulating the quality of “navigable waters of the U.S.,” i.e., rivers, streams, etc., affecting watersheds and downstream water quality.  The agency says federal court decisions compel it to extend its CWA authority. So it’s dropping “navigable.”  However, without “navigable,” it sure sounds like EPA could regulate any “body of water” in the country – including those on private property – such as ponds, swales, ditches, and land which may only “hold” water once in a blue moon, like after an extraordinary rain or during snow melt. .

EPA admits it did a bad job rolling out the rulemaking.  It also tripped up by trying to buy off production agriculture by publishing a parallel “interpretive” rule enshrining all existing farm and ranch CWA exemptions, only to find that by doing so, it significantly altered – for the worse – the role of USDA’s Natural Resources Conservation Service (NRCS) in helping farmers with voluntary conservation of both land and water.  The agency spent a lot of time demonizing the industries which oppose the rule, but running EPA execs to meetings of those supporting the effort.  Most recently, EPA put lipstick on this regulatory pig by renaming the rule; we’re now supposed to call it “EPA’s clean water rule.”

Congress – in a highly bipartisan way – has told EPA its rulemaking stinks.  Committee after committee in both chambers has held hearings and the conclusion is always the same:  The agency is overreaching its authority, grabbing power neither the courts or the CWA give it, and setting itself up to wreak economic havoc on agriculture, small business and other affected parties.  And while EPA is not famous for worrying about the consequences of its actions — particularly when it comes to agriculture — it quickly complied when Congress ordered the agency to withdraw the interpretive rule by tagging instructions  to the agency’s FY2015 spending bill.

EPA confirms that last Friday – as Congress flew out of town for two weeks – the agency sent the final WOTUS draft to the Office of Management & Budget (OMB) for its blessing, the last step before publishing the final effort in the Federal Register.  OMB has 90 days to review the draft final rule, but that deadline could be – and likely will be – extended.

Again, EPA and the Corps reportedly pledge to “protect agriculture,” while better defining what they mean when they say “tributary.”  Tributary to critics is the term which drags ditches under EPA authority. The agency swears it will only regulate “ditches that function like tributaries and can carry pollution downstream – like those constructed out of streams.”

In an as-yet unpublished blog by EPA Administrator Gina McCarthy and Assistant Secretary of the Army (Civil Works) Jo-Ellen Darcy – obtained by The Hagstrom Report – the regulators write, “We will protect clean water without getting in the way of farming and ranching.  Normal agricultural practices, like plowing, planting and harvesting a field have always been exempt from CWA regulations; this rule won’t change that at all.”

I marvel at regulatory agencies which plow ahead despite overwhelming consensus – even from those who support the inspiration behind agency’s actions – that the job done so far is so poor it should be redone.  Maybe a “re-do” isn’t in the cards because the effort would take months, if not years, and that kind of timeline doesn’t fit with the whole administration “legacy” thing way too many people worry about these days.