The Environmental Protection Agency's (EPA) regulatory attack on our economy in central and northwestern Pennsylvania has been growing for some time. In recent months, the EPA moved forward with another power grab to redefine the agency's jurisdiction under the Clean Water Act (CWA), through a new proposed rule commonly known as the Waters of the United States (WOTUS).
In Pennsylvania, Agriculture is our number one industry. As in other parts of the country, our farmers and landowners know that clean air, clean water, and being good stewards of the environment in which they live and work is fundamental to their livelihoods. Despite local prerogatives and successful state and regional initiatives to protect our natural resources the federal government once again has chosen to undercut these efforts with punitive federal regulations.
In March, the EPA issued the WOTUS proposal, alleging the rule expands neither federal authorities nor the amount of water or land under the agency's jurisdiction. The EPA has argued the action will help eliminate ambiguity over which bodies of water are jurisdictional under the law. Unfortunately, this is a far cry from the truth.
In reality, EPA's plan represents an extraordinary expansion of federal power that will further harm our economy and the rights of both states and private landowners.
Enacted in 1972, the CWA was created as a partnership between the states and the federal EPA, in order to better manage identified pollution sources, through a range of pollution control programs such as setting wastewater standards. The scope of the law is limited to "navigable waters" and for the first time it made it unlawful to discharge any pollutant into these bodies, unless a permit is obtained.
The CWA was never intended to impinge upon states' authority as the primary managers of water resources within their borders. Additionally, the law was never intended to regulate smaller noncontiguous bodies of water such as streams, ditches, ponds, and creek beds, which would impose an unnecessary burden on economic activity.
Unfortunately, that's exactly what EPA has proposed.
Despite Supreme Court rulings interpreting the regulatory scope of the CWA more narrowly than what the federal government has asserted, the EPA's new rule moves in the opposite direction. In fact, essentially all waters in the country could potentially be subject to regulation and permitting approval by the federal government under the EPA's proposed rule.
When the WOTUS rule was released by EPA, the U.S. Department of Agriculture (USDA) issued what is known as an "Interpretive Rule" (IR) on the proposal. This IR went into effect immediately - and without any public comment - and named 56 typical agricultural practices that are to be exempt from the WOTUS rule. The IR appears to offer our a permit exemption for normal farming, ranching, and silvicultural activities, if, and only if, individuals comply with conservation guidelines which until now have been completely voluntary.
The Obama Administration and the EPA have argued the WOTUS rule and the IR are intended to eliminate ambiguity and offer greater protections for states, farmers and landowners, when in fact, they create new regulatory burdens, more ambiguity, and less certainty.
EPA Chief Gina McCarthy last month characterized the growing opposition to the WOTUS rule as "ludicrous" and "silly," and recently summarized the backlash as a "growing list of misunderstandings".
It's no misunderstanding. The EPA's WOTUS rule is a historic power grab that poses a fundamental threat to our economy and way of life in Pennsylvania and for communities across the country. Unfortunately, the only thing ludicrous is how EPA continues to believe a punitive one-size-fits-all approach to environmental stewardship is the only way forward.
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