Well, the other shoe has dropped—or perhaps “heavy boot” is more apt. The EPA and Army Corps of Engineers have finalized the rule to redefine “waters of the United States” under the Clean Water Act. We’re going through the final rule (and the nearly 300 pages of accompanying explanation) line by line to determine how it will affect farmers and other landowners. Regardless of EPA’s assurances about what the rule will or won’t do, we’ve dealt with enough EPA doubletalk and overzealous enforcement to know that it’s the fine print that really matters, not a blog post, news release or choreographed town hall meeting.
Here is what we know so far. First, EPA and the Corps have not addressed agriculture’s concerns. In particular, the agencies have doubled down on their definition of regulated “tributaries” broadly to include any place on the landscape where rainwater channels and flows enough to leave a mark. Second, the agencies have not consulted with state and local governments, small businesses or the regulated community to determine the best way to protect truly important waterways without interfering with our ability to use and manage the land. Actually, it appears they’ve added components that weren’t even initially proposed for public review and comment (so much for transparency). Third, the rule does not provide more clarity than landowners had before. If anything, it will be even more confusing and difficult for a landowner to determine if he or she will have to get a federal permit. Fourth, EPA has been deceptive in its promotion of the rule—saying this is about drinking water when it’s really about federal control over land, and misrepresenting Internet “clicks” in support of “clean water” as public “comments” in support of the rule. The agency also has made promises it cannot possibly keep concerning whose activities will and won’t be regulated once enforcement is in the hands of individual regulators, citizen enforcers and the courts.
Last year, AFBF took the time we needed to pore over the rule and report our findings. The result was a comprehensive, credible analysis that enabled Farm Bureau to show exactly where and how the rule would create problems for farmers and ranchers. Due to our leadership, some groups (which shall remain nameless) that had high praise for the proposed rule on day one had to backtrack, and were more reticent in their reactions to the final rule. We are taking the same care to evaluate the final rule and respond thoughtfully and accurately to the agencies’ spin campaign. There is no one more qualified and able to do this than your AFBF policy and legal experts.
Here is one more thing we know: This is far from over. We can and must ditch this rule. Stay tuned!