A top Senate Republican wants his Democratic colleagues to turn their back on an Environmental Protection Agency water regulation and commit to working on new legislation in light of a report he commissioned that found agency overreach in interpreting the new rule.
Senate Environment and Public Works Chairman Jim Inhofe, R-Okla., released a new report on how the EPA and Army Corps of Engineers plan to interpret and exercise the Waters of the United States Rule, should it survive a court challenge.
The Waters of the United States rule, commonly referred to as WOTUS, seeks to clarify which bodies of water can be regulated by the government in the wake of several Supreme Court cases.
Inhofe’s report discusses a number of case studies in how the agencies used the rule, before it was halted by a court challenge, in a way that Inhofe believes gives the bureaucracy too much power.
The senior senator from Oklahoma argues the EPA and the Corps are using the broadest possible claims of jurisdiction to enforce environmental regulations. That includes labeling trenches made for planting in farmers’ fields as “mini mountain ranges” and defining puddles, standing water and tire tracks as “disturbed wetlands,” allowing them to be regulated.
Ten Democrats and an independent senator in a November 2015 letter to the EPA said they would “reserve the right” to revise the rule through legislation if it didn’t provide the clarity farmers are seeking. Inhofe said his report proves that the rule is more confusing than clarifying, and it’s time for the Democrats to withdraw their support for the rule.
“There is no certainty or clarity regarding [Clean Water Act] jurisdiction and EPA and the Corps have eroded traditional exemptions,” Inhofe wrote. “In fact, the scope of jurisdiction that EPA and the Corps are now claiming would astonish the drafters of the Federal Water Pollution Control Act.
“I hope that you live up to the commitment you made last November and work with me on tailored legislation to end the abuses identified in the case studies.”
The regulation has been blocked under a legal challenge. Oral arguments in one of the cases are scheduled in November in the 10th Circuit Court of Appeals. Farmers and business groups, including the U.S. Chamber of Commerce, argue the rule expands the administration’s authority with no basis in case law or the Clean Water Act.
The letter was sent to Sens. Angus King, I-Maine, Bill Nelson, D-Fla., Tim Kaine, D-Va., Mark Warner, D-Va., Dianne Feinstein, D-Calif., Brian Schatz, D-Hawaii, Chris Coons, D-Del., Tom Carper, D-Del., Jon Tester, D-Mont., Michael Bennet, D-Colo., and Amy Klobuchar, D-Minn.
The Clean Water Act was amended in 1977 to allow farmers to plow, seed and do other normal farming activities without getting a permit. However, the Army Corps of Engineers is now saying plowing creates “mini mountain ranges” and “uplands.”
If a farmer were to plow and create trenches or allow farm animals to graze on lands that had been plowed previously, a permit would be needed for discharging “a pollutant,” according to the report.
The Corps also has notified farmers that disking, the process of turning over the upper layer of soil, within any potential area covered by the regulation requires a permit. To do so without a permit would be considered a violation of the Clean Water Act.
The report also says that stock ponds and irrigation ditches would no longer be exempt from federal regulation, as they once had been.
Other examples of changes include new rules for changing the type of crop grown on a certain piece of land.
“The Corps told a landowner that changing the use of a field from growing alfalfa to orchards would constitute a land use change and that Corps regulators could pursue an enforcement action against the landowner if they thought plowing the field to plant trees involved a discharge to wetlands,” the report said.
“The Corps regulator informed the landowner that despite an extensive farming history, orchards were never planted on the ranch so they are not the same kind of farming and might not be considered a normal farming activity.”
The report said farmers in the drought-stricken West would not have been able to grow different crops without a permit under the regulation. Many farmers have had to switch what crops they’re growing due to water shortages.
Inhofe said the administration is running rogue with its regulation. The Democrats need to get on board with a legislative solution regardless of what the courts decide, he said.
“Congress shouldn’t wait on the Supreme Court to make the inevitable decision that this agency overreach is illegal,” Inhofe said, adding that at least 69 senators have voiced their concerns about the rule, which could override a presidential veto.
“It’s time to come together to protect farmers, ranchers, water utilities, local governments and contractors by giving them the clarity and certainty they deserve and stopping EPA and the Corps from eroding traditional exemptions.”
