President Barack Obama’s administration on Wednesday revealed the final version of controversial new rules aimed at protecting streams and wetlands from pollution and degradation.
The Environmental Protection Agency and U.S. Army Corps of Engineers originally proposed the rules in 2014 under the name Waters of the United States but renamed it the Clean Water Rule after opponents launched a fierce campaign to get the proposal scrapped.
The American Farm Bureau has lead opposition efforts, launching a website and starting a social media campaign complete with the Twitter hashtag #Ditchtherule. The EPA responded with its own campaign, website and Twitter tag: #Ditchthemyth.
Nebraska Farm Bureau Federation President Steve Nelson said his organization is combing through the final rules but still has concerns it reaches beyond what Congress intended in the Clean Water Act and plans to continue fighting against that overreach.
“EPA has said a lot of things throughout this process trying to make it sound like there is nothing new here, but as we have looked at the proposals there is a lot of stuff that is new. There is a lot of expansion in what they intend to regulate and how they intend to regulate,” Nelson said.
Federal officials say the new rules will clarify which streams and wetlands fall under the Clean Water Act, which was muddied by U.S. Supreme Court rulings in 2001 and 2006. Those rulings brought into question federal oversight over the 60 percent of U.S. streams that don’t flow year round and millions of acres of wetlands.
Federal officials said the new rules will more precisely define protected waters and allow them to be more predictably determined, making permitting less costly and faster for business and industry. The rules protect rivers, lakes, their tributaries and nearby waters that impact downstream water quality.
EPA Administrator Gina McCarthy said federal officials held more than 400 meetings, got more than a million comments and made significant changes to the initial proposal based on those comments and guided by the latest science.
“They asked us about ditches, and they asked us about ditches, and they asked us about ditches. So we not only kept all of the exclusions and exemptions for agriculture that are in current rules we actually expanded those,” she said Wednesday afternoon during a conference call with reporters.
The new rules, she said, set boundaries on how far out jurisdiction can reach, which addresses one of the main criticisms of the original rules.
Agricultural producers, home builders, local governments and natural resources districts in Nebraska and across the nation opposed the initial proposal, saying it would extend the federal agencies’ authority to nearly every body of water, from farm ditches to ponds to rain gardens, by broadening the definition of “navigable” waters.
They feared the proposal would require expensive federal permits for common activities like building a fence, plowing fields, applying fertilizer and grazing cattle. Failing to get the right permit could result in fines or jail time.
McCarthy said the only time a permit will be needed is when someone wants to pollute or destroy a covered wetland or waterway.
“If you’re not a tributary, and you’re a ditch, ya ain’t in,” McCarthy said. “Unless you act like a tributary and have the features of a tributary, you are simply not jurisdictional under the Clean Water Act.”
Nebraska Gov. Pete Ricketts called the decision bad policy.
"It is clear the administration failed to listen to the concerns of Nebraska’s agriculture and business communities," he said in a statement late Wednesday. "This rule has the potential to saddle our farmers, ranchers, and other businesses with a huge, unwarranted regulatory burden. It should be scrapped.”
U.S. Sen. Deb Fischer, a Nebraska Republican, called the new rules an unprecedented overreach that will burden farm families with new costly permit requirements.
“This rule is an attack on the people of Nebraska,” Fischer said in an emailed statement.
“Make no mistake -- this is a blatant attempt to expand the federal government’s control. This rule will have far-reaching consequences and hurt Nebraska families, communities and businesses.”
Fischer pledged to continue opposing the rules and support congressional efforts to rein in or block the rule.
Many media outlets also have reported opponents are preparing lawsuits opposing the new rule.
John Crabtree of the Nebraska Center for Rural Affairs, which supported efforts to clarify the Clean Water Act, said the final rules address many of the concerns his organization expressed to the EPA.
Crabtree criticized opponents who were unwilling to compromise and engage in constructive debate on the issue.
“If your purpose is to shill for industry and for industrial agriculture, you’re going to oppose whatever (federal officials) say because you don’t care about clean water,” he said.
“There were an entire set of people out there tilting at windmills and railing at the windstorm and calling this a land grab -- the people I refer to as the 'protect our puddles' and 'defend our ditches' crowd.”
Rep. Adrian Smith, R-3rd District, said Nebraskans should be concerned about the rule.
"Our agriculture producers are already great stewards of the land who protect our natural resources," he said. "Washington bureaucrats should never have control over the puddles and irrigation ditches on rural farmers’ property."