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Wotusins (1)Testifying before a House committee last week, American Farm Bureau Federation President Bob Stallman said the Environmental Protection Agency (EPA) is “deliberately misleading” people about the proposed rule defining waters of the United States.

“If more people knew how regulators could use the proposed rule to require permits for common activities on dry land or penalize landowners for not getting them, they would be outraged,” Stallman said. He called the rule the “broadest expansion of regulatory control over land use and private property ever attempted by a federal agency.”

Also last week, EPA and the Army Corps of Engineers announced a 91-day extension of the proposed rule comment period. The new deadline: October 20.

The 3 1/2 hour hearing before the House Transportation and Infrastructure Committee included testimony from representatives of local governments and home builders. EPA’s Deputy Administrator Robert Perciasepe and Jo-Ellen Darcy, assistant secretary of the Army for Civil Works, also testified.

Darcy said the proposed rule makes determining which bodies of water are considered waters of the United States “less complicated and more efficient.”

House committee members questioned EPA and the Corps about whether certain situations would require a permit. Under the proposed rule, most seasonal and rain-dependent streams and wetlands near rivers and streams would be protected under the Clean Water Act. Other types of waters may be protected, if a case-specific analysis shows they have a “significant nexus” -- either alone or in combination with similarly situated “other waters” -- to a traditional navigable water, interstate water or territorial seas. 

Perciasepe said the proposed rule doesn’t apply to “whole flood plains, backyards, wet spots or puddles.” He also said draining a pond doesn’t require a permit. “What we’ve tried to do in our proposal is make it clear that ditches that are built on land that is normally dry and somebody puts a ditch through it to drain it from rain or some other wet event and it’s got water in it sometime – that these are not covered, no matter what,” Perciasepe said in response to a question from Rep. Rick Crawford, R-Ark.

Crawford responded: “Here’s the problem I have with that. Ultimately, that ditch is designed to drain water ... At some point, it drains into a body of water that is regulated and then therefore becomes regulated. Is that not correct?”

Perciasepe said: “If you just look at the definition of significant nexus, you might start getting into those kinds of thoughts. So, what we did in the rule-making is we specifically, by rule, are excluding those -- no matter whether they meet a test or not. I think that’s a key important factor.”

Stallman isn’t buying it. “EPA says the rule does not cover ditches,” he said. “Well, EPA has said a lot of things and its statement about ditches is simply not true.”

 

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