WASHINGTON D.C. — Right now this country is in no-man’s land with regard to the U.S. Environmental Protections Agency’s (EPA) definition of what constitutes a Water of the United States, said Don R. Parrish.

This is what the American Farm Bureau Federation’s (AFBF) senior director of Regulatory Relations told Ohio county Farm Bureau presidents on their trip to Washington this month.

“Before the last election, the Obama administration proposed a Guidance document that would expand the Clean Water Act’s (CWA) regulatory reach,” Parrish said. “They never finalized that document.”

The Guidance document was not discussed during the election season because the administration did not want to make it a controversial issue, he opined. 

“What we have seen is, that Guidance document is unofficially being implemented even without the document being finalized,” Parrish said. “We and a lot of other agricultural and non-agricultural groups sent a letter to the administration asking them to withdraw the Guidance and just go straight to the rule-making.”

This Guidance is being characterized as trying to do what Congress couldn’t, Parrish said. Some in Congress tried to remove the term “Navigable” from the CWA. It appears to the AFBF this Guidance is effectively doing that.

There are many opportunities for the EPA to use its judgment there on individual projects. It puts the people who are doing that project in a tough position, Parrish said.

“Do you want to go through a long, drawn-out effort, maybe a court fight, over whether something constitutes a Navigable Water of the United States, or do you just want your permit and get on with it?” he asked.

People have money on the line and want to finish their project, and that made it difficult to challenge this Guidance, Parrish said. AFBF has asked EPA to officially withdraw the Guidance and to propose a regulation, he explained. But the law as it stands uses the term “Navigable.”

The U.S. Supreme Court has looked at the issue at least twice and indicated there is a very clear limit to federal jurisdiction. The EPA runs the risk of having its program fall apart if it proposes something that is too expansive, that does not stand up to what the court has already done or what Congress put in the law, Parrish said.

“What we’re seeing is a real struggle about what I would call a ditch, that only has water in it during rainfall events,” he said. “We’re not fighting about aquatic resources, we’re not fighting about streams that flow – we’re only fighting about things that have water in them during rainfall events, or for a short duration after rainfall events.”

If the EPA is allowed to regulate that expansively, the CWA then goes from regulating aquatic resources to regulating land use, Parrish said. This definition is going to be used throughout the CWA in everything from water quality standards and total maximum daily loads. He said it has implications for spill prevention, control and countermeasure, for grazing and logging permits and more.

“The real key is, EPA looks at the term ‘restore’ as being prior to human influence,” Parrish said. “Getting to that level of environmental restoration standards is very costly.

“I think our standards ought to be more balanced. You can’t get to a pristine standard and expect people to have affordable homes, drive to work on paved roads and have jobs.”