Choppy Waters

OMAHA (DTN) -- EPA's head of the office of water, Ken Kopocis, acknowledged Wednesday the odds are stacked against the agency in convincing agriculture the final waters of the United States rule will change nothing on the farm.

Judging by the reaction from many agriculture interest groups and members of Congress, Kopocis was right: EPA still has a sales job to complete.

(For more details on the rule, see "Final WOTUS Rule Released" by DTN Staff Reporter Todd Neeley in Ag Policy.)

Many agriculture groups and their members have said EPA may have finalized the rule before producers' concerns were considered.

Because EPA started a push toward more clearly defining waters of the United States back in 2001, Kopocis said he believes the agency did all it could to include agriculture's input.

"I don't think it was rushed," he said during a news conference with agriculture reporters Wednesday afternoon. "I think it was very thoughtful. I'm not expecting everybody will agree with everything we did. It's not that farmers won't be affected by the Clean Water Act. It's just that we don't expect changes under this rule."

Chip Bowling, a Maryland farmer and president of the National Corn Growers Association, said in a news release his group will take time to read the final product.

"We cannot comment on the specifics of the revised rule until we have had a chance to fully review it," he said. "We especially want to ensure that the broad promises made in the EPA press release are carried out in the text of this comprehensive rule. With the earlier round of proposed rules, NCGA was concerned that the earlier proposed rule represented a significant expansion of federal Clean Water Act jurisdiction relative to anything that has ever been in rulemaking before. We especially will look closely at how on-farm ditches, ponds and puddles are treated in the rule."

FACT SHEET

EPA released an agriculture fact sheet Wednesday, outlining the changes made to the rule -- attempting to narrow the scope of the proposed rule down to what the agency said it really intended.

A significant portion of opposition to the proposed rule was based on a reading that all ditches would become jurisdictional.

"The rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream," the fact sheet said. "So ditches that are not constructed in streams and that flow only when it rains are not covered."

The American Soybean Association said in a news release Wednesday that it too will read the rule closely before addressing any concerns it still has.

ASA president and Texas farmer Wade Cowan said his group hasn't been given an opportunity to comment on the final rule.

"We voiced strong opposition to the original version, and while we are encouraged by the agency's willingness to revisit the rule and potentially address farmer concerns, we are very much in a 'trust but verify' mode," he said.

National Farmers Union president Roger Johnson said in a news release he was impressed with the work EPA completed.

"NFU's policy opposes any expansion of jurisdiction under the Clean Water Act, but EPA has made genuine efforts in reaching out to agriculture stakeholders in the rule-making process and the final rule clearly demonstrates that the agency took the concerns of family agriculture under serious consideration," he said. "While the rule is not perfect from our perspective, the final rule is an improvement over the proposed rule.

"The final rule puts bright-line limits on jurisdiction over neighboring waters, offering farmers increased regulatory certainty and mitigating the risk of enforcement or litigation... We appreciate EPA's work on the regional water features, but remain concerned about waters that cannot impact the quality of jurisdictional waters will fall under jurisdiction, or that farmers will not have the regulatory certainty they need to address these waters appropriately."

WOTUS SUPPORT

Rhea Suh, president of the Natural Resources Defense Council, said in a news release the rule was needed to expand protection to some 117 million Americans.

"It was a long, hard slog to reach this day," she said. "Now we will redouble our efforts to defend the new clean water rule against developers, big polluters and their allies in Congress who want to kill it."

National Wildlife Federation President and Chief Executive Officer Collin O'Mara, said in a news release his group is pleased protection was restored to prairie potholes.

"These wetlands provide critical breeding grounds for millions of ducks every year -- more than half of the nation's waterfowl," he said. "The process worked as it should, with the Army Corps and the Environmental Protection Agency making numerous improvements and clarifications to the rule based on the public comments. The final rule balances the urgent need to protect our nation's essential water resources with landowners' desire for clarity."

American Sustainable Business Council President and Chief Executive Officer David Levine, said in a news release the costs to implement the rule should not be a reason to oppose it.

"The Clean Water Rule provides strong benefits to industry and the economy that far outweigh any minor costs," he said. "The Senate should let them go forward and not delay them any longer. Any business can be disrupted if water sources become reduced or contaminated."

CONGRESS OPPOSITION

Both sides of Congress this year have passed legislation aimed at forcing EPA to withdraw the rule. Members of Congress Wednesday called out EPA for going forward with a rule change that members of Congress say should come through legislation.

House of Representatives Transportation and Infrastructure Committee Chairman Bill Shuster, R-Pa., and Water Resources and Environment Subcommittee Chairman Bob Gibbs, R-Ohio, said in a joint statement Wednesday the EPA's final rule will expand jurisdiction.

"It is incredibly disappointing and disturbing that we have come to this point," they said. "For years, the administration failed to find any traction to move this expansion of federal regulatory power through Congress. Since the repeated collapse of its efforts in Congress, the administration proposed to broaden its authority through this proposal, in which it failed to properly consult with states, local governments, and other stakeholders.

"Today, the administration is capping off this power grab, plowing ahead with its flawed rule despite the bipartisan, bicameral concerns of Congress, despite the long-standing federal-state partnership to regulate waters under the Clean Water Act, and despite the objections and concerns from at least 32 states and representatives of the nation's large cities, smaller cities, counties, towns, townships, farmers, businesses, homebuilders, contractors, manufacturers and more."

House Committee on Agriculture Chairman K. Michael Conaway, R-Texas, and Conservation and Forestry Subcommittee Chairman Glenn Thompson, R-Pa., said in a joint statement the rule "further obscures the original intent" of the Clean Water Act.

"America's farmers and ranchers deserve a government that will review and address their concerns," they said. "Instead, the process by which this rule was established ignored them. Even input from the states was ignored, clearly displaying the arrogant, 'government knows best' attitude ever-present in this administration.

"Through hearings, letters and public forums we have repeatedly asked the administration to work with stakeholders to achieve the goals of the CWA rather than act as a schoolyard bully. Our requests were dismissed in favor of the expansion of federal authority despite bipartisan opposition from Congress and the public."

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

(GH/AG)

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