Despite public claims by the U.S. Environmental Protection Agency that it reached out to agriculture groups on the new waters of the United States rule, a number of groups continue to seek information about how the new rule will affect farmers and ranchers.
This week a number of ag and forestry groups asked EPA and the U.S. Army Corps of Engineers to share information generated from a non-public webinar for state regulators. In that Sept. 17, 2015, webinar, the federal agencies answered more than 20 different questions about how state regulators are to interpret the new rule in the field.
So far, the answers to those questions have not been made public, according to a letter sent Tuesday to EPA Administrator Gina McCarthy and Secretary of the Army John M. McHugh.
The groups, including the American Farm Bureau Federation, National Corn Growers Association and others, tell McCarthy and McHugh the industries still are trying to sort out what the rule will mean to their members. Some 30 states have sued the federal government, attempting to stop the rule in numerous cases pending in several federal courts. Right now the rule doesn’t apply to 13 states where a court injunction is in effect.
“The undersigned organizations represent or work with farmers, ranchers and foresters who are struggling to understand the practical implications of the final rule defining ‘Waters of the United States’ (WOTUS) under the Clean Water Act,” the groups write in a letter.
“Non-state agency personnel were not invited to participate. For the reasons cited below we ask that you promptly release publicly the answer that your agencies provided at the webinar to these and any other questions that were addressed. Furthermore, as additional webinars on other final rule implementation topics are held, we ask that your agencies’ answers to those questions also be made public immediately.
“Not just the regulators, but the regulated public, have a need to know how your agencies interpret the rule. Our members are deeply concerned that as a result of this final rulemaking, effective today in 37 states, they now have drainage and water features on their properties that are categorically WOTUS. If this is the case, our members know that they are subject to serious civil and even criminal federal liabilities for point source discharges into those features.”
DTN filed a Freedom of Information Act request with EPA in May asking for a variety of materials documenting communications between EPA and agriculture interest groups and farmers. The request still is pending.
Other ag and forestry groups asking for the webinar information include the American Forest and Paper Association, American Soybean Association, American Sugar Beet Growers Association, American Sugar Cane League, CropLife America, Forest Landowners Association, Forest Resources Association, Hardwood Federation, National Alliance of Forest Owners, National Cattlemen’s Beef Association, National Cotton Council, National Council of Farmer Cooperatives, National Pork Producers Council, and the Virginia Agribusiness Council.
The webinar in question covered a variety of topics such as what is the difference between ditches and canals, how to know if ditches were constructed in dry land, what definitions of ‘ephemeral,’ ‘intermittent,’ and ‘perennial flow regime’ will be used in determining ditch exclusions, and whether there is guidance for onsite determinations of that nature, according to the letter.
Other questions addressed in the webinar are how the agencies will determine whether ditches that have been in place for decades are relocated tributaries or are excavated in tributaries, and whether permitted discharges into these ditches must be designed to meet water quality standards in the ditch or in the receiving water.
“Liability may be imposed even if the landowner does not know that the features involved are WOTUS,” the groups write. “There is a fundamental fairness problem with communicating to the regulators but not to the regulated community that will bear the liabilities on the finer points of how to identify WOTUS under the rule.”
The groups said answers provided to the state regulators would “be vitally helpful to our members to help reduce their confusion and uncertainty and make informed business decisions about whether and how their operations need to change to avoid discharges in violation of the Clean Water Act.
“We believe your agencies have an obligation to provide this information to the public. Whatever answers and guidance have been provided to assist state agency personnel would be equally useful to the regulated community and should be easy to share.”