Fact Sheet: Hatch Defends Utahns Against Expansion of Federal Authority Over Land and Water

November 4, 2015

How the Federal Government Wants to Expand Its Authority Over Land And Water

WASHINGTON, D.C. – November 4, 2015 – (RealEstateRama) — In June, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (ACE) issued a final “Waters of the United States” (WOTUS) rule that expanded the scope of federal authority over land and water at the expense of Utahns. The rule has been called a “massive land grab” that will expose Utah farmers, ranchers, home owners, and businesses to significant compliance costs and new fines.

Today the Senate will vote on the Federal Water Quality Protection Act, which Senator Hatch has cosponsored. This bill will direct the EPA and the Army Corps of Engineers to withdraw the flawed rule and issue a revised proposal.

How This Hurts Utah

WOTUS will require Utah farmers, ranchers, and other business to obtain federal land use permits at a median cost of $155,000.

As the second driest state in the nation, this new water rule will directly or indirectly impact all of Utah. Any water that drains into the Colorado River, the Green river, the Virgin River, the Paria River will be regulated under this rule and it will affect everything from desert washes to small ponds and irrigation ditches on Utah’s family farms and ranches.

WOTUS will have a major impact on jobs and businesses. Here are a few examples of how industries will be affected, via the US Chamber:

Retailers: Retailers who salt a parking lot in the winter to keep customers from slipping on the ice might need a federal permit:

Retailers, shopping centers, and other businesses with paved parking lots will be more likely to be required to treat their stormwater/snowmelt runoff before it leaves their property. For example, “big box” retail stores with garden centers or vehicle maintenance services are particularly likely to face more stringent Clean Water Act permitting required by EPA and the Corps. In some cases, these businesses would be required to obtain NPDES permits for the first time for discharges to WOTUS.

Building Materials Makers: Wood product manufacturers and other makers of building materials produce dust and dirt that washes into ditches next to their plants. WOTUS would force these companies to apply for a federal permit to clean out those ditches:

Materials used in their products like sawdust, clay, and dust, can get into their stormwater and, ultimately, into their ditches. These ditches must periodically be cleaned out so they can flow properly. Currently, most of these ditches are regulated by the States through the section 402 stormwater program. Under the revised WOTUS definition, they would likely have to obtain section 404 permits to remove clay sediment from these ditches when maintaining them. Requiring building products companies to get section 404 permits for ditch maintenance would be a costly, time-consuming mandate that puts additional economic stress on the industry (as well as on the construction industry) while doing nothing to actually improve water quality.

Sand, Stone, and Gravel Production:

The raw materials for sand, stone, and gravel are often located near water. More stringent federal rules could limit the availability of these supplies. Not only would these industries be hurt, but “the construction of highways, public works, and residential and commercial building projects would be seriously impacted.”

Railroads: WOTUS would make maintaining the ditches along the 140,000 miles of track running across the country a federal issue:

Railroad ditches may be WOTUS under the proposed rule even if they are dry nearly all of the year, or are not hydrologically connected to a traditional WOTUS. As one company has noted, “we have thousands of miles of ditches which could suddenly become subject to onerous regulation with absolutely no benefit to the environment.”

Who Opposes This Power Grab? Nearly Everyone Affected.

When finalizing the rule, the administration was insincere in listening to stakeholder concerns – then effectively ignored them. It ignored opposition from families, farmers, ranchers, home builders, state and local governments, small businesses, and other property owners.

Randy Parker, CEO, Utah Farm Bureau Federation

“The recently finalized EPA rule on Waters of the US (WOTUS) creates tremendous uncertainty for farmers and ranchers across Utah and the nation as the Obama Administration seeks to expand federal jurisdiction over the states and private property rights. Utah Farm Bureau appreciates the work of Utah Senator Orrin Hatch, the U.S. Senate’s ranking Republican, to stop this regulatory overreach. It is clear under the SWANCC and Rapanos decisions, Congress and the U.S. Supreme Court have set limits on EPA regulation. Foremost, Utah Farm Bureau is concerned with the expansive definition of “tributary” including landscape features that will ultimately bring farmer’s irrigation ditches and Utah’s many dry gullies that flow only during occasional rains under the new WOTUS definition and EPA regulation. WOTUS provides no clarity, no certainty and Farm Bureau sees no limits to the power the agency is seeking!”

The American Farm Bureau Federation

“The Federal Water Quality Protection Act (S. 1140) addresses critical concerns we have with EPA’s “waters of the U.S.” proposed rule. There can be no question that the rule poses a serious threat to farmers, ranchers and private landowners. The proposal, if finalized, would allow EPA to regulate well beyond the limits authorized by Congress and affirmed by the Supreme Court.”

U.S. Chamber of Commerce

“The U.S. Chamber of Commerce, the world’s largest business federation representing the interests of more than three million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations, and dedicated to promoting, protecting, and defending America’s free enterprise system, supports the Federal Water Quality Protection Act (S.1140) and the Committee’s efforts to address the Environmental Protection Agency’s and U.S. Army Corps of Engineers’ significant jurisdictional overreach as these agencies prepare to finalize their proposed definition of “waters of the United States.”’

Waters Advocacy Coalition (WAC)

“It is now abundantly clear that Congress needs to provide guidance to the agencies and set parameters for that regulation. The Federal Water Quality Protection Act (S. 1140) would require the withdrawal of the joint rulemaking recently finalized by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) revising the definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA). S. 1140 then provides to EPA and the Corps the procedural and substantive direction necessary for development of a more reasonable rule that will protect the nation’s ‘navigable’ waterways.”

U.S. Conference of Mayors

“The Federal Water Quality Protection Act (S. 1140) requires the EPA and the Corps to work closely with states and local governments to develop a new proposed “waters of the U.S.” rule as partners with the federal government in implementing and enforcing CWA programs. The Act is consistent with our belief that states and localities should be consulted in meaningful ways on rules before they are formally proposed, especially if the rule will have a significant impact on capital costs, operations and mandates for the people we serve as required under federal law.”

The Science Behind WOTUS Is Disputed by the Army Corps of Engineers

Officials in the Army Corps of Engineers have actually challenged the administration’s characterization of the rule as “a joint effort of the EPA and the Corps.” Major General John Peabody, the Deputy Commanding General for Civil and Emergency Operations, has written multiple public letters disavowing the rule, stating that the administration “shall not identify the Corps as author, co-author, or substantive contributor,” that it should not be referenced as an involved agency, and asked that its logo be removed from any documents.

General Peabody also argued data “has been selectively applied out of context, and mixes terminology and disparate data sets.” EPA documents related to the rule “contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies and logical inconsistencies.”

Internal Army Corps of Engineer memos also suggest that certain provisions in the rule, including the 1500 ft. limitation and the 4000 ft. bright line rule, are not “based on any science or law and are thus legally vulnerable.”

The Army Corps of Engineers Also Questions the Legality of the Rule

A federal district court has already enjoined the rule and raised numerous constitutional questions. The Army Corp of Engineers now joins it in raising legal questions about the internal processes related to its development. According to General Peabody:

“The draft final rule continues to depart significantly from the version provided for public comments, and that the corps recommendations relation to our serious concerns have gone unaddressed. Specifically, the current draft final rule contradicts long-standing and well-established legal principles undergirding CWA 404 regulations and regulatory practices, especially the decisive Rapanos Supreme Court decision. The rule’s contradictions with legal principles generate multiple legal and technical consequences that in the view of the Corps would be fatal to the rule in its current form.”