EPA’s Murky Water Rule

Weekly Column

Sen. Mike Johanns

A far-reaching water proposal by the Environmental Protection Agency (EPA) would open the floodgates to expensive permits and compliance costs for a variety of industries and individual land owners. And as concerned citizens weigh in on the proposal before it is finalized, EPA’s unwillingness to provide details has muddied the water on its downstream implications.
Congress gave EPA regulatory authority in the Clean Water Act over navigable waterways, but EPA’s proposal would go way beyond what I believe Congress intended. The rule would redefine federal regulatory reach to include everything from farm ponds to drainage ditches to low lying areas that are dry for most of the year. Basically, if EPA believes there’s a chance that a drop of water could eventually make it to a navigable water, they want to regulate it.
American agriculture stands to be particularly hard hit by this federal overreach. EPA claims the rule will clarify what the agency can and cannot regulate, but it actually has created confusion and ambiguity in ag circles. When faced with specific questions during listening sessions with producers, EPA has failed time and again to provide adequate responses. In fact, the agency has refused to discuss specifically how the rule would work. This lack of transparency makes participating in the democratic comment process to improve the rule virtually impossible. Even EPA’s attempt to clarify exemptions for certain federal Clean Water Act permits has led to a boatload of confusion.
Last week, I joined my Republican colleagues on the Senate Agriculture Committee in a meeting with EPA Administrator Gina McCarthy, and let her hear the concerns our constituents voice to us virtually on a daily basis. At the heart of our discussion was this proposed water rule. The fact that Senators who represent producers across the nation all expressed common concerns illustrates just how far-reaching and problematic this proposal is.
Although the Administrator was meeting with Senate Republicans, ag producers’ beef with the ambiguity surrounding EPA’s water rule spans political perspectives. For example, some of the rule’s early supporters within the industry recently asked the Administrator for greater clarification of what would fall in EPA’s new and expanded scope.
The reality is, this confusion could have been avoided had EPA opened a meaningful dialogue with ag producers and actively sought to address their concerns before putting pen to paper. When I was Secretary of the Department of Agriculture (USDA), we hosted farm bill forums in all 50 states to better understand the concerns of the folks our policies would impact.  We made it a priority to work with stakeholders and find the best solution for all involved before writing a proposal.
EPA has a long way to go to improve its strained relationship with the ag community.  Administrator McCarthy acknowledged that she needs to do a better job of working with producers.  If she is sincere in this desire, she would scrap this flawed proposal and engage in a robust discussion with America’s farmers and ranchers before pursuing new, potentially-burdensome regulations.