The National Cattlemen's Beef Association and the Public Lands Council asked the EPA to withdraw the proposed Clean Water Act rule in a 37-page comment letter submitted Tuesday, calling out the agency on a number of fronts including making claims that EPA and the U.S. Army Corps of Engineers have not followed the Administrative Procedures Act during the public comment period that ends Nov. 14. In addition, the two groups said the agencies have misinterpreted two U.S. Supreme Court rulings in 2001 and 2006 in drafting a rule they say lacks clarity and exposes landowners to legal jeopardy.
"The Administrative Procedures Act requires federal agencies to ensure public participation in the rulemaking process by providing a meaningful opportunity for the public to comment on the rule's content," the groups said in the comments. "The agencies have failed to provide the data the rule is based upon."
Most notably, the proposed rule is based on a draft report entitled "Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence." The scientific advisory board just concluded work on that report, giving the public just until Nov. 14 to review it.
Not having that report available from the outset, the groups said, has made it difficult for them to provide "more extensive comments."
"Unfortunately, there are too many significant legal holes throughout the document to be able to meaningfully comment on the scientific and legal extent of the proposed rule," the groups said. "Therefore, NCBA and PLC assert that the proposed rule prevents the American public from being able to provide meaningful comments on the proposed rule, thereby violating the APA. To correct this fatal flaw the agencies must withdraw the rule and possibly at a later date fill in the gaping holes and provide the public with the information to make meaningful comments."
NCBA Environmental Counsel Ashley McDonald said in a statement that the proposal will jeopardize private property rights and "violates Supreme Court precedent by subjecting nearly all waters to regulation. Through the use of broad and ambiguous language, the proposal is a limitless expansion of authority that cannot be supported by the Clean Water Act or the U.S. Constitution."
PLC Executive Director Dustin Van Liew said in a statement that although there is a need for CWA clarification, this rule will add layers of bureaucracy and subjectivity to the Clean Water Act.
"The proposed rule places no limit on the federal government's authority over water, violating the Clean Water Act as articulated by the Supreme Court, and will eviscerate over a century of settled water law in much of the country," Van Liew said. "Contrary to the agencies' claims, the exclusions and exemptions in the proposal are unclear and provide the livestock industry no certainty."
McDonald added, "Through this process, cattlemen and women have learned one thing; the only thing that is completely unregulated is the arrogance of the EPA."
Throughout the public comment period agriculture and other groups have called for EPA to provide more specific definitions of those waters that are jurisdictional. Without that clarification, they contend, EPA could regulate even dry land as water.
"NCBA and PLC assert that the vast instances of undefined terms and phrases throughout the proposed rule make meaningful comments on the proposed rule impossible," the groups said in their public comments. "NCBA and PLC cannot provide comments on the impact of a proposed definition that does not exist, or has a wide range of interpretations.
"The proposed rule places no discernible limit on the federal government's authority over water, violating the CWA as articulated by the Supreme Court in SWANCC and Rapanos."
Watch for the four-part series of stories next week on DTN, entitled, "Web of Water." The stories explore the Clean Water Act rule and its potential effects on U.S. agriculture.
Read the NCBA, PLC comment letter here, http://www.beefusa.org/…
The public comment period for the proposed rule ends Nov. 14. You can read the rule here, http://tinyurl.com/…
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