EPA Water Rule ‘Huge Power Grab,’ Says Boozman

A proposed federal environmental rule will have an adverse impact on the state’s economy and specifically agriculture, the state’s attorney general told a Senate committee Tuesday. A conservation group disagreed and the state’s senior senator said the move is a “huge power grab” by the EPA.

Attorney General Leslie Rutledge testified before the U.S. Senate Agriculture, Nutrition and Forestry committee about the “Waters of the United States” rule.

The rule would seek to expand the federal Clean Water Act to include virtually all waterways in the United States, including ditches, to be under scrutiny from the Environmental Protection Agency, opponents have said.

However, supporters of the rule including environmental groups, have said the rule will streamline a complex issue and help the environment.

IMPACT
During her testimony, Rutledge said current federal law allows federal officials to use the Clean Water Act to regulate “navigable waters, which it defines as ‘Waters of the U.S.’.”

However, a recent United States Supreme Court decision noted federal regulations have been applied too broadly in its scope, Rutledge said.

“Recently, in the Rapanos case, a test emerged that requires the water or wetland in question to possess a ‘significant nexus,’ or connection, to traditionally navigable waters. The agencies assert that the proposed rule is necessary to clarify the test. But nothing in the proposed rule offers clarity. Instead, it is complicated, overreaching and infringes on states’ rights. First, the proposed definition of ‘tributary’ goes beyond the ‘significant nexus’ test. In Rapanos, Justice Kennedy stated that the Clean Water Act would not apply to drains, ditches, and streams remote from any navigable water and carrying only minor water volumes toward it. However, the agencies expand the definition of tributary to include waters that contribute flow whether directly or through another source,” Rutledge said. “Even a trickle or roadside ditch can be characterized as ‘flowing water.’ An irrigation canal running through farmland to a local creek could be covered under the proposed rule in direct contradiction to Kennedy’s holding.”

‘HUGE POWER GRAB,’ BOOZMAN SAYS
Sen. John Boozman, R-Ark., said the proposed rule is one of the top concerns for the state’s farmers, with everything from stock farms to ditches along roads facing scrutiny under the proposal.

Rutledge said the proposed rule would hurt farmers in the state.

“At the same time as this rule was proposed, the agencies released an ‘interpretive rule’ to clarify ‘normal farming practices.’ The Delta Region is home to advanced cutting-edge farming technologies that are not considered ‘normal’ in other parts of the country, but provide benefits to our farmers, and the environment through efficient use of water and fertilizer. Although the rule was withdrawn, it is an example of the EPA attempting to arbitrarily expand the Act without public notice and comment,” Rutledge said.

Boozman said traditionally states have been able to regulate areas like ditches and culverts while leaving rivers and streams up to federal regulation. The proposal flips the rule on its proverbial head, Boozman said.

“It is a huge power grab by the federal government,” Boozman said in an interview with Talk Business & Politics from the nation’s capital. “The good news is that there has been tremendous improvements made by the federal government (in the past). But they are taking power away.”

Boozman said federal regulators are pushing hard for implementing the rule, but noted members of the state’s congressional delegation and two powerful committees in Washington, D.C. – the House Transportation and Infrastructure and Senate Agriculture committees – are working to stem the tide.

“The legislation (in the rule) is so vague. They say it helps to clarify. But it makes it less clear than ever,” Boozman said. Also, Boozman said he is pushing for legislation to define what the EPA can or cannot do on regulatory issues.

SIERRA CLUB RESPONDS
The testimony Tuesday by Rutledge on the proposed rule drew a rebuke from Glen Hooks, director with the Arkansas chapter of the Sierra Club.

“Attorney General Rutledge has been in office barely two months, and she has already publicly opposed three key clean air and clean water protections,” Hooks said. “Our state’s top legal official should be embracing steps that lead to cleaner air and water, not fighting against them.”

“The ‘Waters of the United States’ rule is simply an attempt to clarify which waterways fall under the Clean Water Act. Since the Clean Water Act was passed in 1972, there have been a series of court decisions that have left the public and regulators confused while leaving many key drinking water sources and much wildlife habitat unprotected,” Hooks added. “In response, the EPA seeks to clear up confusion and protect drinking water from pollution. Simply put, the proposed rule clarifies not only which waters fall under federal jurisdiction, it also specifically states which ones do not. This will be helpful to everyone who engages with our nation’s waterways.”

Hooks also said the proposed rule reduces the jurisdiction on the federal law that began in 2001.

“Citizens, businesses, and farmers need clarity and certainty, and this rule helps provide that. Unfortunately, Attorney General Rutledge is once again offering a knee-jerk negative response to common-sense environmental protections. Well-crafted environmental protections help everyone, and we are ill-served by an Attorney General who reflexively opposes any and all attempts to protect our natural resources,” Hooks said.

However, Rutledge said the proposed rule will hurt another natural resource in the state – its people.

“The proposed WOTUS rule from the EPA expands the Clean Water Act beyond the intent of Congress and adds greater confusion and uncertainty for Arkansas’s farmers and ranchers. If allowed to move forward, this rule could drive future generations out of agriculture, and ultimately impact the food supply of all Americans. I appreciate Senator Boozman and the leadership of the Arkansas congressional delegation on this issue, and I look forward to continuing to work them to halt this rule’s implementation. As the chief legal officer, I am prepared to pursue all legal challenges necessary to prevent this unlawful rule from impacting our state,” Rutledge said.