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New spending bill may not rein in EPA after all

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The 113th Congress delivered a big Christmas present – or possibly bags of coal – to agriculture when it passed the $1.01 trillion spending bill last month.

One present is buried deep in Rules Committee Print 113-59 Text of House Amendment to the Senate Amendment to H.R. 83.

Both houses of Congress passed language regarding the Clean Water Act, which on the surface appears to bring EPA under some control regarding certain agricultural practices.
Let’s look at the fine print.

The Washington Post wrote, “In a win for Republicans, the spending bill blocks the Environmental Protection Agency from applying the law to certain farm ponds and irrigation ditches – a move that GOP aides said would benefit farmers.”

The Washington Post writer, not surprisingly, knows little about agriculture and even less about the Clean Water Act. (Farm ponds are presently exempted from EPA regulation if not built in a wetland.)

The Rules Committee Print of the Omnibus Budget bill on pp. 444-445 includes two sections, 111 and 112. A layman’s reading would suggest that Congress has substantially reduced EPA’s authority regarding the CWA. Not so!

Congress, in Section 111, refers to the CWA Section 404 (f) (1) (A). Subsection (f) presently exempts farmers, ranchers and timber owners if they are engaged in normal timber and ranching activities. There can be disputes here between EPA and a farmer on what is “normal.”

Section 111 says “None of the funds made available by this Act may be used to require a permit for the discharge of dredged or fill material under the Federal Water Pollution Control Act…for the activities identified in subparagraphs (A) – normal farming practices- and (C) – building and maintaining farm ponds of Section 404 (f)(1) of the Act.”

EPA will no doubt say that the bill does not override paragraph (2) which says a permit is needed if you build a pond in a wetland. This seems to be a Christmas present.
Section 112 on page 444-445 appears to be powerful. It says, “The U.S. Environmental Protection Agency and the U.S. Department of the Army shall withdraw the interpretive rule, ‘U.S. Environmental Protection Agency and the U.S. Department of the Army interpretive rule regarding the applicability of the Clean Water Act Section 404 (f)(1)(A),’ signed on March 25, 2014.”

This is a mere three-page memorandum signed by EPA and Corps officials. This March 25, 2014, memo is labeled an Interpretive Rule which is merely guidance, not a rule. So what appears to be a powerful message to EPA is merely a slap on the wrist.

The interpretative rule did suggest that the Natural Resources Conservation Service agricultural conservation practices might be required in order for farming and timber practices to be exempt from Section 404 of the CWA. So, forcing withdrawal is a Christmas present.

Congress left the elephant in the room on the books, which is the EPA proposal of April 21, 2014, entitled Definition of “Waters of the United States” under the Clean Water Act.
This is the proposed rule which has generated enormous opposition, as suggested by Sen. Grassley, which is 88 pages of small print and expands enormously EPA’s jurisdiction. It now defines such terms as adjacent, neighboring, flood plain, tributary, and of course defines “Significant Nexus,” which could give EPA jurisdiction over virtually all waters in the U.S. This proposed rule is not mentioned!

That’s why this bill continues to be a real bag of coal, and I suspect, possibly, a target of the Republican House and Senate in 2015.

Do not be swayed by over enthusiastic news stories such as those in the Washington Post that agriculture received a big win or Christmas present from the lame duck Congress. If it is a present, it is not much of one, and it may be more like a bag of coal.

(This column first ran in Farm Futures on December 24, 2014.)

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