WV Farm Bureau Magazine July 2015 - Page 5

Something to Think About Don Michael, WVFB Director of Governmental Affairs Stop the Madness – Discussion continues to be generated across the nation and within our state on EPA’s latest push forward with their final rule defining “Waters of the U.S.” (WOTUS). This comes in spite of the fact that extensive input has been generated from across the private sector, including agriculture, about the unintended and intended consequences of this rule, deemed by many as a government power grab that could cripple or destroy American agriculture as we know it. enforcement if their activities cause any materials (such as fertilizer or herbicide) to fall into ditches, even when the ditches are dry. AFBF has similar concerns regarding agricultural irrigation ditches, which often flow either perennially or intermittently. Our June 11, 2015 update from American Farm Bureau Federation gets directly to the point – Final “Waters of the U.S.” Rule: No, No, No! No Clarity, No Certainty, No Limits on Agency Power. Highlights from AFBF’s summary include: The rule sets forth a number of exclusions, but questions loom large in determining if the exclusions apply. The refusal to clearly define key terms means the agencies will have broad discretion to identify “waters,” and to limit the scope of most of the exclusions. As with any ambiguous regulation, the agencies will hold the trump card later in interpreting what’s arguably the most important word in this rule: WATER. The definition of “tributary” has been broadened to include landscape features that may not even be visible to the human eye, or that existed historically but are no longer present. The agencies (EPA and the U.S. Army Corps of Engineers) rejected requests from commenters to exclude features that carry water only when it rains and to require more than just the presence of the highly subjective bed, bank and ordinary high water mark. Instead, the final rule broadened the definition and made so-called tributaries even more difficult for landowners to identify. The final rule also allows the agencies to identify tributaries based entirely on past conditions rather than current conditions. The final rule explicitly regulates many ditches as “tributaries.” The rule excludes ditches with ephemeral (after rainfall) flow that “are not a relocated tributary or excavated in a tributary” and ditches with intermittent (e.g. seasonal) flow that “are not a relocated tributary, excavated in a tributary, or drain wetlands.” But, based on the agencies’ broad notion of “tributary,” AFBF has serious concerns that many, perhaps most, agricultural ditches that flow only ephemerally will be categorically regulated as “excavated in” a tributary or as a “relocated” historical tributary. Farmers will be at great risk of All waters “adjacent” to other WOTUS, including those invisible tributaries, are regulated. Waters are automatically regulated if any part of the water, or any part of a wetland adjacent to the water, is within 100 feet, or within the 100-year floodplain and not more than 1,500 feet, from certain other jurisdictional waters, including “tributaries.” The new standard is confusing, hard to apply and lacks clarity. Bob Stallman, AFBF President, nailed it in some of his recent comments – “The Environmental Protection Agency finally released its new clean water rule and actually managed to make it worse than we expected . . . Our analysis shows yet again how unwise, extreme, and unlawful this rule is . . . It’s time for Congress to step in and check EPA’s blatant overreach.” Last month AFBF General Counsel Ellen Steen testified before the Senate Judiciary Committee, explaining how the EPA abused and distorted the normal rulemaking process to pre-determine the outcome of its highly controversial “Waters of the U.S. rule.” Keep up the great work AFBF! Your leadership and involvement, combined with the efforts of our friends in Congress and the ag community nationwide, will help to stop the madness. Until next time, KEEP SMILING FRIENDS, God bless you and your loved ones, and God bless America. West Virginia Farm Bureau News 5