By Julie Tomascik
Associate Editor
The battle over the Environmental Protection Agency’s (EPA) overreach is headed to the courts. Agriculture and a number of business groups say the final rule greatly expands the EPA and U.S. Army Corps of Engineers’ control over the waters of the United States.
The flood of lawsuits followed shortly after the release of the rule in late June.
And Texas Farm Bureau (TFB), Matagorda County Farm Bureau, the American Farm Bureau Federation (AFBF) and 11 other groups filed suit in the federal district court in Galveston. The complaint claims the new rule grants EPA and the Corps broad control over land use—far beyond what Congress authorized in the Clean Water Act.
This is an astonishing overreach of federal regulatory power, TFB President Russell Boening said. It’s clear Congress never intended EPA’s regulatory power to extend beyond truly navigable waters.
The rule has faced opposition from states, businesses and agriculture since it was first proposed in April 2014.
It claims to clarify what bodies of water the EPA can legally regulate under the Clean Water Act, extending protections to some two million acres of streams and 20 million acres of wetlands.
According to the complaint filed by the organizations, the agencies are determined to exert jurisdiction over a staggering range of dry land and water features. The result is a rule that is vague and uncertain.
And its effects on the Lone Star State and agriculture will be damaging.
EPA can apply federal jurisdiction over most anything—including farm ponds, ditches and fields—as waters of the U.S. (WOTUS). That means the agency could virtually dictate land-use decisions and farming practices, making farming and ranching a time-consuming and costly endeavor.
A permit may be necessary to build fences and apply pesticides or fertilizers. Extensive fines could be levied if a permit isn’t obtained for those practices and could affect farmers’ and ranchers’ ability to remain in production.
The final rule is very vague and fails to let regulated parties know when their conduct violates the law, Boening said.
Interpretations will be on a case-by-case basis. Instead of being dictated by science, decisions may come down to individual determinations.
Concerns were expressed by thousands of farmers and ranchers across the nation during the comment period. More than 1,200 comments were sent to the EPA from TFB members alone.
But those complaints fell on deaf ears. And the final rule is set to take effect Aug. 28, 60 days after it was published in the Federal Register.
What we have here is a federal agency that conceived a regulatory program when none was needed, lobbied extensively for it and skewed the public comment process, Boening said.
The legal battle is expected to be long.
But an injunction could be filed, stopping implementation of the rule until a decision is reached in the courts.
We all want clean water, Boening said. But this rule isn’t about clean water. It’s about the EPA and the Corps taking over private property. Something Texas Farm Bureau doesn’t stand for.