The Environmental Protection Agency and the Army Corps of Engineers are implementing the Waters of the United States rule although an appeals court blocked the regulation last year, witnesses told a Senate subcommittee Tuesday.
The U.S. Court of Appeals for the Sixth Circuit put a stay on the rule in October while legal challenges are heard, but Don Parrish, senior director of regulatory relations at the American Farm Bureau Federation, said EPA and Army Corps officials are still putting some pieces of it into effect.
Parrish told the Senate Environment and Public Works Committee’s Fisheries, Water and Wildlife Subcommittee that Corps officials have told farmers in his home state of California that they need to change some practices because of the rule. He said Corps officials are telling farmers they have jurisdiction over new land areas and are withholding information on the tools they use to make those judgments.
“This regulation is a growing disaster for farmers and ranchers,” Parrish said.
The Waters of the United States rule is an attempt to clarify Supreme Court decisions that cast uncertainty on what qualifies as a federally protected water source, according to federal officials. However, farmers and ranchers contend it is a federal overreach that keeps them from cultivating land by placing more and more water sources, such as drainage ditches, under federal control.
Alaska Republican Sen. Dan Sullivan said in his state the federal bureaucracy is trying to claim that permafrost, or soil that is permanently frozen due to cold temperatures, is under federal jurisdiction as a wetland, despite having no properties of a wetland.
Sullivan says that could keep farmers from working the land and would cordon off a huge area of Alaska, more than 500,030 square miles of the state, from new farming and building. That is happening despite the federal agencies not having the regulatory or legal authority to do so, he said.
“This is happening all over the United States, even though the Waters of the United States rule has been stayed by a federal court of appeals,” he said.
Valerie Wilkinson, the chief financial officer for the Alabama-based real estate firm EGS Cos., told the committee about a tract of land purchased in Virginia by her firm for development during the 1980s. The area was supposed to be a group of homes over 428 acres, but the Army Corps of Engineers has downsized the amount of area available for development so much that it now encompasses about 54 acres.
Wilkinson said the reason is that the Army Corps of Engineers keeps changing its mind about what part of the land constitutes a wetland.
“These changing regulations make it so difficult for a small business to plan for the future or to run their business when these regulations are constantly changing and expanding,” she said.
Sen. Jim Inhofe, R-Okla., said the experience of Wilkinson’s company showed the real impact of what happens when federal agencies expand their authority through regulations.
“Things that can’t be done through legislation, they are trying to do through regulation,” he said.
Democrats on the committee cast the hearing as a simple attack on the EPA and the Army Corps.
Sen. Ed Markey, D-Mass., said the Army Corps and the EPA came up with the rule to clarify a confusing landscape made complicated by the Supreme Court. The rule provides more certainty to those affected by the regulation instead of causing more guesswork, he said.
“The uncertainty of the Clean Water Rule is not good for our businesses, not good for our communities and not good for our environment,” he said.
Sen. Sheldon Whitehouse, D-R.I., chastised Republicans for casting the regulation as a federal overreach. He said residents of his state, which is often affected by pollution in other states, appreciate the stronger rule.
“For those of us downstream … we like this protection,” he said.
