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Date: 6/26/2014

Title: Houses Discusses New Federal Schemes to Soak Up Water Authority

This week, the House Natural Resources Committee’s subcommittee on water and power held an oversight hearing entitled “New Federal Schemes to Soak Up Water Authority: Impacts on States, Water Users, Recreation, and Jobs.” The hearing was to address the Environmental Protection Agency and the U.S. Army Corps of Engineers’ proposed rule on redefining the “Waters of the United States” as well as the Forest Service’s new “ground water directive.”

“We can foster water development for people and species if the federal government chooses not to erect hurdles to new projects,” said Doc Hastings (R-Wash). “Yet, the two proposals in front of us - the EPA's "Waters of the U.S." and the Forest Service's new "Groundwater Directive" do nothing more than make it more difficult to rehabilitate or build new projects that benefit agriculture, municipalities, species and habitat.”

The hearing largely focused on the ambiguity of the proposed EPA rule that has left ranchers with questions on how to remain in compliance, avoiding potential fines of up to $37,500 per day. Many members were frustrated with the lack of transparency from both agencies’ citing their many failed attempts at outreach to stakeholders. Much of the frustration was directed at Tom Tidwell, Chief of the U.S. Forest Service, for declining an invitation to appear before the subcommittee to testify on the “groundwater directive”

To the surprise of some, Andrew Lemley, testifying on behalf of New Belgium Brewing Company, came out in support of the proposed EPA rule. He was met with questions from Congressman LaMalfa (R-Cali.) regarding what brands of beer New Belgium Brewing made.

“My guys will be interested in what beer products they will be drinking after work,” said Lamalfa, questioning him further by asking if the grain suppliers of the brewery were aware of his position. “I have a lot of grain growers across my district and they are not happy about these changes. If they want to change their irrigation system in any way then they will be subject to that being a ‘water of the United States’ or somehow navigable.”

The broadened definition, said Lamalfa, adds new areas of jurisdiction like shallow subsurface water connections. The Supreme Court has ruled federal water jurisdiction is limited, but the proposal considers most if not all waters interconnected without regard to how much or how often they contain water. The exemptions the EPA has included are subjected to termination and litigation.

 “This is the scary part for my growers, my constituents,” said Lamalfa. “They are subjective, so maybe you have one representative come to check on what you are doing, and they think it is ok this week. The next time you make the same changes to another field - changing a crop or plowing – you may have a different bureaucrat say ‘we’re going to haul you to court,’ as some of my people have been threatened under lawsuit and litigation. It goes on for months and years before they even get an answer. They are sitting there with their land tied up, unable to be productive on it, still paying taxes, still making land payments because a bureaucrat somewhere has a threat against them.

 “With all the different ways the EPA can find a water to be jurisdictional under the proposed rule, can you think of a water that wouldn’t be under federal jurisdiction under the proposed rule?” Lamalfa asked of the panel. “Is there anything that could really truly be exempt taking into account a different interpretation by a different bureaucrat day-to-day?”

If it is not withdrawn this expansion of the “waters of the United States” will hurt a vast number of industries and small business and in the end, the increased regulatory burden will be felt by the American consumer. NCBA is actively engaged to see both the EPA proposed rule and the Forest Service directive withdrawn.