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Is the Clean Water Act under attack?

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Brian Calvert | Jun 24, 2014 10:30 AM

In Washington, DC, last Thursday, the House Committee on Agriculture held a small hearing on an obscure permitting rule under the Clean Water Act. But in that hearing chamber rumbled the voice of Big Agriculture girding for a fight against federal regulation of the nation’s waters.

The Subcommittee on Conservation, Energy and Forestry hosted the hearing to discuss a so-called interpretive rule the feds issued in March. The rule clarifies exemptions to the Clean Water Act enjoyed by farmers, ranchers and foresters when it comes to digging out or filling in waterways. However, the rule has earned the ire of major agricultural lobbies and is caught up in the current political climate of Washington, pitting opponents of President Obama against his regulators.

These might seem like just more quibbling between our elected leaders and federal regulators, but at stake is clean water and how it is protected, particularly in the arid West, where waterways defy old legal definitions. Ranchers and farmers fear losing authority over their ditches and fields, but other Western water users—boaters, anglers and other sportsmen—see a chance for better execution of the Clean Water Act, one that might better preserve rivers, wetlands and other critical habitat for wildlife.

Agriculture is concerned over the EPA's water rules, but ag is the only industry with exemptions under the Clean Water Act. Photo by Flickr user Sam Beebe.

Thursday’s hearing provided a platform to groups like the National Corn Growers Association and the American Farm Bureau Federation to hammer the U.S. Environmental Protection Agency for its attempts to clarify agricultural exemptions for “normal farming” practices. Regulators say they hope to better define these exemptions to better keep up with modern farming and soil conservation practices.

Yet agriculture industry representatives say the rule does more harm than good. In statements typical of Thursday’s events, Don Parrish, a lobbyist for the American Farm Bureau Federation, said regulators had “confused policymakers, the media, and farmers and ranchers” and had narrowed—not just clarified—exemptions.

For Jon Devine, a water attorney for the Natural Resources Defense Council, such statements were “painfully disconnected from reality…. The agencies have, in my view, bent over backwards to try to provide accommodation to the agricultural community, even despite the fact that that sector is already very much unregulated in the vast majority of the Clean Water Act.”

Thursday’s hearing was not just about a small exemption rule for ag, however. The EPA issued the interpretive rule alongside an extensive overhaul of its regulations for defining waterways under the Clean Water Act.

That larger overhaul, or “proposed rule,” is open for public comment through mid-October and so far has brought about opposition from congressmen who support the ag industry. And it has been a handy excuse for some lawmakers to further criticize the Obama Administration.

“The Obama EPA is trying every scheme they can think of to take control of all water in the United States,” Sen. John Barrasso, R-Wyo., said in a statement Thursday, as he announced a bill to stop the EPA from issuing its new regulations. “This time, their unprecedented federal water grab is in the form of a rule that will hurt family farms, ranches, and small businesses by imposing outrageous permitting fees and compliance costs.”

Barrasso authored the bill with support from his fellow Wyoming senator, Mike Enzi, both senators from Utah, both from Idaho, and one from Nevada.

The problem with the bill is that it is based on unfounded fears.

Regulators insist that the new rule will streamline permitting, not impose more of it, and the new rule still accounts for exemptions to agriculture under the Clean Water Act. An EPA spokeswoman told me by e-mail on Friday that the new rule would actually reduce the scope of some waters protected under the Clean Water Act. “The ‘broad expansion’ characterization is incorrect,’” she wrote.

On Thursday, those wider attacks on the EPA were attached to its attempts to clear up exemptions for ag—the only sector with special exemptions under the Clean Water Act. But few of the broad attacks or the specific ones are rooted in what the regs actually say.

In an op-ed on Monday, the LA Times came out in support of the EPA’s new rule, the result of a “very public, transparent and even-handed process.” The editors called on Congress to “butt out and let the rule-making process take its course.”

They likely won’t, of course. Because, Devine says, what is happening is not only an attack on the rules or a process, but on the Clean Water Act itself, coming mostly from Big Ag, which would benefit from a rollback in environmental protections.

“Industry—the coalition of industries—and their friends on the Hill want to revisit the basic question of the Clean Water Act and whether it’s a good idea to protect waters that have been protected for more than 40 years,” Devine says. “You hear some of the rhetoric from members of Congress, that this would regulate little streams and ponds. Well, yeah. Exactly. That was always the case.”

Brian Calvert is the associate editor at High Country News. He tweets @brcalvert.

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