Something to Think About
Don Michael, WVFB Director of Governmental Affairs
Stop the Madness –
Discussion continues to be
generated across the nation
and within our state on EPA’s
latest push forward with their
final rule defining “Waters of
the U.S.” (WOTUS). This
comes in spite of the fact
that extensive input has been
generated from across the private
sector, including agriculture, about the unintended and
intended consequences of this rule, deemed by many as
a government power grab that could cripple or destroy
American agriculture as we know it.
enforcement if their activities cause any materials (such
as fertilizer or herbicide) to fall into ditches, even when
the ditches are dry. AFBF has similar concerns regarding
agricultural irrigation ditches, which often flow either
perennially or intermittently.
Our June 11, 2015 update from American Farm
Bureau Federation gets directly to the point – Final
“Waters of the U.S.” Rule: No, No, No! No Clarity, No
Certainty, No Limits on Agency Power. Highlights from
AFBF’s summary include:
The rule sets forth a number of exclusions, but
questions loom large in determining if the exclusions
apply. The refusal to clearly define key terms means the
agencies will have broad discretion to identify “waters,”
and to limit the scope of most of the exclusions. As with
any ambiguous regulation, the agencies will hold the
trump card later in interpreting what’s arguably the most
important word in this rule: WATER.
The definition of “tributary” has been broadened to
include landscape features that may not even be visible
to the human eye, or that existed historically but are no
longer present. The agencies (EPA and the U.S. Army
Corps of Engineers) rejected requests from commenters
to exclude features that carry water only when it rains
and to require more than just the presence of the highly
subjective bed, bank and ordinary high water mark.
Instead, the final rule broadened the definition and made
so-called tributaries even more difficult for landowners
to identify. The final rule also allows the agencies to
identify tributaries based entirely on past conditions
rather than current conditions.
The final rule explicitly regulates many ditches as
“tributaries.” The rule excludes ditches with ephemeral
(after rainfall) flow that “are not a relocated tributary or
excavated in a tributary” and ditches with intermittent
(e.g. seasonal) flow that “are not a relocated tributary,
excavated in a tributary, or drain wetlands.” But, based
on the agencies’ broad notion of “tributary,” AFBF has
serious concerns that many, perhaps most, agricultural
ditches that flow only ephemerally will be categorically
regulated as “excavated in” a tributary or as a “relocated”
historical tributary. Farmers will be at great risk of
All waters “adjacent” to other WOTUS, including
those invisible tributaries, are regulated. Waters are
automatically regulated if any part of the water, or any
part of a wetland adjacent to the water, is within 100
feet, or within the 100-year floodplain and not more
than 1,500 feet, from certain other jurisdictional waters,
including “tributaries.” The new standard is confusing,
hard to apply and lacks clarity.
Bob Stallman, AFBF President, nailed it in some of
his recent comments – “The Environmental Protection
Agency finally released its new clean water rule and
actually managed to make it worse than we expected .
. . Our analysis shows yet again how unwise, extreme,
and unlawful this rule is . . . It’s time for Congress to
step in and check EPA’s blatant overreach.” Last month
AFBF General Counsel Ellen Steen testified before the
Senate Judiciary Committee, explaining how the EPA
abused and distorted the normal rulemaking process to
pre-determine the outcome of its highly controversial
“Waters of the U.S. rule.” Keep up the great work
AFBF! Your leadership and involvement, combined
with the efforts of our friends in Congress and the ag
community nationwide, will help to stop the madness.
Until next time, KEEP SMILING FRIENDS, God bless
you and your loved ones, and God bless America.
West Virginia Farm Bureau News 5