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House Votes to Block WOTUS
Wednesday, September 10, 2014 9:04AM CDT

By Chris Clayton
DTN Ag Policy Editor

OMAHA (DTN) -- The House of Representatives voted Tuesday to block EPA's proposed rule defining waters of the United States, siding with farmers and business groups who have argued for months that the EPA rule amounts to regulatory overreach.

The bill passed 262-152 with 35 Democrats siding with Republicans to force EPA and the Army Corps of Engineers to shelve the effort. Thirteen of the Democrats who sided with Republicans on the bill are members of the House Agriculture Committee.

"This legislation is necessary because, in my view, the EPA does not seem to understand the real-world effects these regulations will have on farmers across the country," House Ag Ranking Member Collin Peterson, D-Minn., said during the floor debate. "We still don't have any clear definition of a wetland, an issue dating back to the '80s and '90s. Maps used by USDA were unclear and often mislabeled wetlands. This rule would only add more uncertainty."

Peterson added, "In my state, USDA's Natural Resources Conservation Service has done a great job working with farmers to encourage voluntary conservation efforts. This rule would severely disrupt these positive efforts."

EPA and the Army Corps of Engineers proposed last spring to change the way agencies define navigable waters of the U.S. under the Clean Water Act. Coupled with that proposal was an interpretive rule regarding normal farming and ranching practices that are exempt from specific permit requirements. The comment period for the proposed rule has been extended to Oct. 20.

At least 30 Republican senators have co-signed on to similar legislation in the Senate. However, Senate Majority Leader Harry Reid, R-Nev., is not likely to bring up such a bill before the November elections.

Attorneys general from at least 15 states have written EPA asking the agency to withdraw the proposed rule. The Texas attorney general has warned his state will sue EPA if the agency doesn't withdraw the rule.

The proposed rule has come under fire partly because of its breadth, despite assurances from EPA officials that the rule would not expand EPA's regulatory authority.

The definition used by EPA for waters of the United States includes: "Traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined as such waters; tributaries, as defined, of traditional navigable waters, interstate waters, or the territorial seas; and adjacent waters, including adjacent wetlands. Waters in these categories would be jurisdictional 'waters of the United States' by rule -- no additional analysis would be required."

All perennial, intermittent and ephemeral streams would be part of the rule because they are considered tributaries that are "physically and chemically connected" downstream to traditional navigable waters. Farm groups have argued EPA would be regulating farm ditches and ponds under the rule.

The American Farm Bureau Federation has made defeating the proposed rule a top priority, creating a #DitchtheRule campaign. Farm Bureau President Bob Stallman said the House "stood with farmers and ranchers" with Tuesday's vote.

"Passage of H.R. 5078 isn't just a clear rejection of the overreach that lies in the EPA's proposed Waters of the U.S. rule," Stallman said. "Today's action is an unmistakable signal that the tide is turning against those who ignore the constitutional separation of powers in the United States. We will ditch this rule."

Democrats opposing the bill cited current problems with water quality. The most dramatic was Rep. Marcy Kaptur, D-Ohio, who called the legislation a "death bill." Kaptur held up a Mason jar full of algae from Lake Erie. Such algae built up around an intake valve for the city water treatment plant for Toledo, Ohio, forcing city officials to warn residents not to drink city water for three days.

"What happened to us is a severe warning for our country and we'd better pay attention," Kaptur said in a quote in the Cleveland Plain Dealer.

Rep. Peter DeFazio, D-Oregon, said the bill did not just block the rule, but shelved all the work that has been done over the past two years by the agency on the issue. DeFazio said the lack of definition on waters of the U.S. would leave the country with a hodge-podge of guidance rulings from EPA that farm groups had noted were inconsistent and provided lack of clarity.

"Let's go back to those good old days before the Clean Water Act," DeFazio said sarcastically.

The House bill would actually delay any proposed change in the definition of waters of the U.S. for at least two years and require EPA to conduct more extensive consulting with state and local officials from around the country. Republicans said the bill would prevent EPA regulatory overreach and keep the current balance between federal and state regulatory agencies.

"I am pleased the House approved this bipartisan, commonsense bill to block the EPA from expanding its control of our nation's land and water resources," said House Agriculture Committee Chairman Frank Lucas, R-Okla. "Whether it's trying to regulate farm dust out of existence, milk as oil, or now treat ditches like major water tributaries, the EPA has demonstrated a hunger for power and a lack of understanding of how its actions impact America's farmers and ranchers. The agency's latest action would trigger an onslaught of additional permitting and regulatory requirements for our agricultural producers to protect not our great natural resources, but rather our backyard ponds."

Chris Clayton can be reached at Chris.Clayton@dtn.com.

Follow him on Twitter @ChrisClaytonDTN.


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