In the past, I have pointed out that the rest of the world pays 50 percent of their income to eat two meals a day while we in the United States pay only 25 percent of our income to eat three meals a day. I have predicted this disparity is changing, and not in a good way.

Instead of pulling the rest of the world up to our level, the trend is to pull us down to be as miserable as the rest of the world. The new Waters of the United States rule is one of the many ways to do that. This rule is very important and will personally affect you and your pocketbook, whether it is changed or enacted as currently written.  

Jacqui Fatka wrote in Farm Futures an excellent column upon which I cannot improve. It is reprinted here. Read it. Read it again. Then set it aside and read it again tomorrow. You have been warned.    

EPA’s WOTUS concerns mount

The final Waters of the U.S. rule is set to go into effect on Friday, but the rule continues to leave a massive wake of concerns as many look to place an injunction to stop enforcement and new information from the Army Corps of Engineers shows they’re not 100 percent behind the new rule, either.

In May, we first started seeing the veil lifted on how the Environmental Protection Agency conducted its rule-making process for a rule that is supposed to help “clear” the waters in what is and isn’t considered jurisdictional by the federal government.

Now, the EPA may have to defend those actions as more than 100 members of the House have asked the EPA’s Office of the Inspector General to open a formal investigation into the EPA’s lobbying efforts to promote its rule-making and determine whether any federal anti-lobbying laws were broken.

The House Committee on Oversight and Government Reform released more than 50 pages of memos, some labeled “litigation sensitive,” in which the Army Corps of Engineers sometimes strongly disagreed with the EPA on the process of drafting the final WOTUS rule.

The documents, which were not intended to be made public, tell a story of two agencies in disagreement over not only process, but also the use of data, the definitions in the final rule and the scientific and legal justifications for what the EPA was doing.

Some of the memos went so far as to seek removal of the Corps’ logo from the final documents, as well as removing them as an “author, co-author, or substantive contributor.”   

Referring to specific points in the final rule, the memos state that the “1,500-foot limitation is not supported by science or law” and the “4,000-foot bright-line rule is not based on any principle of science, hydrology or law,” rendering both, therefore, “legally vulnerable.”

In one letter just two weeks before the final rule was released, Maj. Gen. John Peabody, the Corps’ deputy commanding general for civil and emergency operations, wrote to Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy, saying, “Corps data to (the) EPA has been selectively applied out of context, and mixes terminology and disparate data sets. In the Corps’ judgment, these documents contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies and logical inconsistencies.”

In a letter to the Corps, Senate Environment and Public Works Committee Chairman Jim Inhofe, R-Okla., referenced documents and asked for clarification on the inclusion of additional waters coming under regulation because of the new rule, and a new request for the Corps’ basis for conclusion that prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California and Texas coastal-prairie wetlands should also be included in the regulation, as the Corps had said it “had never seen any data or analysis to explain, support or justify this determination.”

Perhaps more importantly, one Corps memo states that the final rule was “inconsistent with SWANCC and Rapanos,” the two Supreme Court decisions on Clean Water Act regulations that the final WOTUS rule was supposed to clarify.

In an April 24 memo from Lance Wood, assistant chief counsel for environmental laws and regulatory programs at the U.S. Army Corps of Engineers, to Peabody, Wood wrote, “It will be legally vulnerable, difficult to defend in court, difficult for the Corps to explain or justify and challenging for the Corps to implement.”

Courts update

The legal flaws identified by the Corps in these memos are the same vulnerabilities groups and attorneys general have identified in the lawsuits against the rule. Colin Woodall, vice president of government relations at the National Cattlemen’s Beef Association, said he sees the memos as very supportive to plaintiffs in the ongoing court cases.

Currently, 29 states and many commodity groups have sued the EPA. A U.S. district court in Cincinnati, Ohio, was randomly chosen to hear the 12 lawsuits that were filed across the country. The EPA had asked that the cases be consolidated.

The 6th U.S. Circuit Court of Appeals — where an appeal of the district court’s decision would be filed — comprises of Kentucky, Michigan, Ohio and Tennessee, and Steve Kopperud, executive vice president of Policy Directions, said the court is known to be a “more moderate court.” Koperrud said while merging the cases should speed up the challenge process, there’s no schedule for action.

The National Pork Producers Council, National Cattlemen’s Beef Association, Public Lands Council, United Egg Producers and U.S. Poultry and Egg Association have asked the agencies to postpone implementation of the regulation. A group of 31 state attorneys general also have asked the agencies delay implementation to give the court time to review the legal arguments raised against the rule.

In a letter to EPA Administrator Gina McCarthy, the commodity groups say complexities and uncertainties associated with the rule and the fact that there was little time for the regulated community to comply with it and for the EPA and Corps of Engineers staff to be trained to interpret and implement it should prompt the delay.

“The regulated community needs to know how the Clean Water Act’s jurisdiction will be determined and assurances that such determinations will be made in a timely, predictable and consistent manner,” the organizations say.

They requested that the WOTUS rule’s effective date be delayed “until all relevant staff at the agencies have been adequately trained on implementation of the rule.”

Philip Ellis, NCBA president, said the internal memo documents should indicate that the EPA “is not ready to begin enforcement of this flawed rule and demonstrate why this rule should be withdrawn and rewritten with input from all stakeholders.”