Leaked Draft of Water Jurisdiction Rule May Not Be Final EPA Position, Vilsack Says

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By Amena H. Saiyid

A draft rule asserting broader Clean Water Act jurisdiction over U.S. waters and wetlands does not necessarily reflect the final position of the Environmental Protection Agency, Agriculture Secretary Tom Vilsack told a farm group Jan. 13.

“We have been assured by the EPA that the draft rule that was leaked, that was unfortunately leaked, does not necessarily reflect the position of the EPA,” said Vilsack, reiterating the administration's claim made in November by EPA Administrator Gina McCarthy before a House Science, Space and Technology Committee hearing .

“We need to wait and see what comes out of EPA,” Vilsack told participants at the American Farm Bureau Federation's annual convention, which runs Jan. 10-15 in San Antonio.

Vilsack told the farm bureau that he had conveyed their concerns to the EPA regarding “the real-world impact” of the joint EPA-U.S. Army Corps of Engineers draft rule that is currently undergoing interagency review at the White House Office of Management and Budget. Bloomberg BNA obtained that draft rule in November .

The draft rule, which is due out in proposed form this year, seeks to clarify the definition of “waters of the United States” subject to Clean Water Act protections and would include most natural and artificial tributaries as well as wetlands that are adjacent to or neighboring to larger downstream waters. The rule also would allow the agencies to consider the aggregate effect of geographically isolated wetlands and other waters on downstream waters.

'Battle' Regulatory Overreach

The farm bureau is among the groups charging that the language in the draft proposal amounts to an overreach by the federal government into the regulation of water bodies that should be left up to the states.

A day earlier, Farm Bureau President Bob Stallman warned the Obama Administration that the nation's farmers and ranchers are prepared to “battle” the EPA's efforts to broaden its regulatory reach under the Clean Water Act.

EPA through its draft rule is proposing to extend Clean Water Act authority to “nearly every water body in the country, whether it is navigable or not,” Stallman said in a keynote address at the start of the convention. “Heck, under this rule, EPA would regulate so-called 'waters' that aren't even wet most of the time. We're talking dry ditches.”

Appeal Expected in TMDL Case

In addition, Stallman said the farm bureau would appeal a district court ruling that upheld a pollution reduction plan that EPA wrote in 2010 to regulate discharges of nitrogen, phosphorus and sediment to prevent water quality impairment of the Chesapeake Bay.

In the U.S. Court of Appeals for the Third Circuit, Stallman said the farm bureau is appealing the district court decision that upheld the total maximum daily loads plan for the Chesapeake Bay. He said the bay TMDL plan would give the federal government the power “to shut down farms, halt development, and cripple municipalities in the name of improving water quality” (Am. Farm Bureau Fed'n v. EPA, 3d Cir., No. 13-04079, appeal filed 10/16/13; .

Defending Privacy

Moving onto privacy issues, Stallman said the farm bureau has “deeper concerns” that the federal government is turning over farmers' personal information to what he termed “activist groups--groups that can use the information to target farmers and their families--because the activists don't like what a farmer grows or how he grows it.”

He vowed that the group would defend the privacy of poultry and livestock operations run by farmers and ranchers against Freedom of Information Act requests filed by environmental groups seeking information regarding the management of animal waste from small livestock operations.

In July 2013, the American Farm Bureau Federation and the National Pork Producers Council sued the EPA in the U.S. District Court for the District of Minnesota. The purpose of the lawsuit was to prevent EPA from re-releasing the names, home addresses, global positioning system coordinates, and personal contact information of owners and operators of concentrated animal feeding operations in 29 states, and releasing such information in six other states in response to FOIA requests filed by environmental groups (Am. Farm Bureau Fed'n v. EPA,D. Minn., No. 13-1751, 7/5/13; .

Stormwater Lawsuit

He also said the farm bureau would continue to fight the EPA over making sure that agriculture stormwater runoff from farmyards remains exempt from Clean Water Act permitting requirements.

In a separate case, the farm bureau is backing a West Virginia farmer, Lois Alt, who successfully sued EPA for requiring Clean Water Act discharge permits for stormwater runoff containing litter and manure from the farmyard. EPA is appealing the outcome of this lawsuit in the U.S. Court of Appeals for the Fourth Circuit (Alt v. EPA, 4th Cir., No. 13-2534, appeal filed 12/23/13).

Stallman also urged the Congress to pass the Water Resources Development Act, which would fund water projects critical to transporting crops across state lines, and the farm bill that would set prices for commodity crops, streamline policies for commodities, dairy products, crop insurance, nutrition, forestry programs. Lawmakers in both chambers have nearly completed their negotiations in reconciling competing versions of both bills.

“Whether it's a regulatory, legal or legislative issue, just think how much farm bureau could achieve if everyone were like Lois Alt-- looking beyond our own individual interests, taking a long-term view, and taking a stand for America's farmers and ranchers.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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