Our Views Columns

Our Views Columns

Date: 11/17/2011

Title: Big Government Hijacks Clean Water Act

By Ashley Lyon, NCBA deputy environmental counsel

What you can‘t legislate, regulate. Such has been the case time and again with the overzealous regulators in the current administration. Fortunately for farmers, ranchers and private property holders nationwide, the U.S. Congress is on the verge of blocking the administration from moving forward with an overreaching, potentially devastating expansion of the Clean Water Act (CWA). The U.S. Senate could vote, possibly this week, on an amendment offered by Senators John Barrasso (R-Wyo.) and Dean Heller (R-Nev.) to the Energy and Water Development Appropriations bill for fiscal year (FY) 2012 that would defund the U.S. Army Corps of Engineers‘ (Corps) and the Environmental Protection Agency‘s (EPA) attempt to expand its jurisdiction under the Clean Water Act (CWA) through guidance documents and/or regulation.

The guidance attempts to expand the Corps and EPA‘s jurisdiction by redefining what a ?water of the United States? (WOTUS) is. It uses broad terminology to determine whether a water is a ?tributary,? essentially allowing every ditch or conveyance to qualify and fall under federal regulatory authority. It expands the agencies‘ jurisdiction to cover ephemeral streams (which are streams with water in them only during rainfall events). It is unlikely most farmers and ranchers even know where all of the ephemeral features are located on their property. Next, it defines ?traditional navigable waters? as any water that supports one-time recreational use. One trip in a canoe down a stream would qualify a water as a ?traditional navigable water.? In the history of the CWA, the term ?traditional navigable water? has only been used to describe major rivers that can float commercial vehicles like barges. Finally, for all ?other waters? field staff will have broad authority to find any type of water (puddle, prairie pothole, mudflat, etc.) is a WOTUS by finding it is ?similarly situated? to other jurisdictional waters, or, finding it has a ?significant nexus? to a ?traditional navigable water? (which also has been expanded).

Unfortunately, this is not a new issue. The federal government‘s authority under the CWA has been the subject of two recent Supreme Court cases, which have clearly articulated that the Corps and EPA‘s jurisdiction is not limitless, unfortunately, that is exactly what the guidance does. It makes the federal government‘s authority over water limitless. Additionally, legislation was introduced in previous Congresses to redefine WOTUS in this manner, by deleting the word ?navigable? from the CWA. Those bills never went anywhere. There was never enough support to move them through Congress and there is not enough support today. In fact, 170 members of Congress sent a letter to EPA and the Corps opposing the guidance earlier this year. The administration ignored Congress and plowed ahead with this overreaching guidance. The National Cattlemen‘s Beef Association (NCBA) and the Public Lands Council (PLC) supports protecting and preserving our nation‘s waterways but subjecting every drop of water in this country to EPA and the Corps jurisdiction isn‘t responsible, science-based regulation. NCBA worked to stop those misguided pieces of legislation and has worked relentlessly to stop this guidance.

While the guidance has not been finalized yet, the agencies are quickly moving forward to a rulemaking redefining the term ?waters of the United States? to codify the guidance. It has been reported that EPA and the Corps may walk away from the guidance only to send a proposed rule, which would likely contain much of the exact language in the guidance to expand the types and number of waters subject to the CWA, to the Office of Management and Budget in the coming weeks. This is the final step before a regulation is officially proposed or finalized. In order to stop EPA and the Corps from trying to regulate virtually every drop of water – be it through regulation or guidance – Congress must act. The Barrasso-Heller amendment would do two things. First, it would prohibit the Corps from finalizing the guidance. Second, it would prohibit the Corps from promulgating a rulemaking redefining WOTUS. Senator Barrasso said the amendment ?blocks Washington‘s power grab over all farms, ranches, small businesses and rural communities.? He also said the ?guidance creates even more uncertainty that delays economic investment and job creation. America‘s ranchers should be focused on running their operations — not dealing with this Administration‘s bureaucratic red tape.?

The guidance claims to provide clarity and certainty to landowners. Unfortunately, expanding the scope of the CWA in such a manner will do nothing but give farmers and ranchers the certainty that every stream, ditch and pond on their property will be subject to federal regulation, not the kind of certainty cattle producers are looking for from this administration.

NCBA urges all senators to support the Barrasso-Heller amendment and we urge cattlemen across the country to weigh in with their senators as well. Supporting this amendment is a vote on the side of responsible, commonsense regulation and it is a vote on the side of America‘s farmers and ranchers.



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