Beef cattle drink from a seasonal stream in northern Nevada

Beef cattle drink from a seasonal stream in northern Nevada.

Leave it to the U.S. Environmental Protection Agency (EPA) to start a firestorm with water - one that is being fanned by nationwide anger, distrust and bitterness.

The new "Clean Water Rule" issued May 27 by EPA and the Army Corps of Engineers is a 297-page tome that was supposed to clarify the scope of "waters of the United States" (WOTUS) under the Clean Water Act (CWA) of 1972. Instead, it seems to have done exactly the opposite.

Clarifications became necessary in the wake of three cases challenging CWA that went to the Supreme Court in 1985, 2001 and 2006. Almost immediately after the new rule was issued, however, CWA opposition seemed to increase and become even louder. Many say the clarifications themselves are unclear.

EPA said the new rule is not an attempt to extend the agency's already broad authority to define what falls under its purview. President Obama assured that it was "explicitly written to avoid getting in the way of farming, ranching or forestry." Both statements have fallen on deaf ears and generated amazingly sharp rebuttals.

M. Reed Hopper, an attorney who successfully argued one of the cases before the high court, said "It leaves all the previously ill-defined terms in place… and it provides that federal officials can decide on a case-by-case basis whether any ‘other waters' should be regulated."

Even before the Clean Water Rule was released, the U.S. House of Representatives passed a bill to block it. In the Senate, a bipartisan bill has been introduced to put the Clean Water Act back on the drawing board. Attorney generals in Oklahoma and Arkansas are considering injunctions against the new rule's enforcement.

John Barrasso (R-WY), one of the Senate bill's lead sponsors, called the Clean Water Rule "outrageously broad" and said, "Washington bureaucrats have gone beyond their authority and have no business regulating irrigation ditches, isolated ponds and other ‘non-navigable' waters."

Speaker of the House John Boehner (R-OH) was tremendously more blunt. "The administration's decree to unilaterally expand federal authority is a raw and tyrannical power grab that will crush jobs," he said. "House members of both parties have joined more than 30 governors and government leaders to reject EPA's disastrous WOTUS rule. These leaders know firsthand that the rule is being shoved down the throats of hardworking people with no input and (it) places landowners, small businesses, farmers, and manufacturers on the road to a regulatory and economic hell."

The country's largest dairy organization has also weighed in. "Above all, agriculture needs certainty on which waterways fall under the jurisdiction of the Clean Water Act. EPA's final rule doesn't appear to provide that clarity," said National Milk Producers Federation President and CEO Jim Mulhern.

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(c) Hoard's Dairyman Intel 2015
June 15, 2015
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