WASHINGTON I Recently U.S. Rep. Scott Tipton (R-CO3) questioned U.S. Department of Agriculture Undersecretary Robert Bonnie during a House Agriculture Subcommittee hearing to review the Interpretive Rule Regarding the Applicability of Clean Water Act Agricultural Exemptions.
During the hearing, Tipton contested Bonnie’s claims that agriculture producers’ access to water would be protected as the Environmental Protection Agency (EPA) attempts to expand its regulatory reach through a proposed rule that redefines “waters of the United States” from “navigable” waterways to virtually every form of surface water.
Tipton emphasized that while the EPA Clean Water Act Rule covers all surface water, a new proposed Forest Service Groundwater Directive will expand that agency’s regulatory overreach to include all groundwater – including access to streams and tributaries that feed into it. Combined, these two administrative actions could drastically restrict farmers and ranchers from accessing their water rights on all fronts.
During the hearing, Tipton contested Bonnie’s claim that the Interpretive Rule to the EPA’s proposed Clean Water Rule (put forward without any public comment) would protect farmers’ and ranchers’ access to water, and pointed out that the Forest Service Groundwater Directive would essentially negate any “protections” the Interpretive Rule provides.
A partial transcript of their exchange follows:
TIPTON: As you were going through your testimony, you were saying that (the Interpretive Rule) applies to established farming areas. What if there’s an adjacent field that hasn’t been farmed and a farmer or rancher buys that. Does it then apply?
BONNIE: If it’s not a ‘waters of the U.S.’, they’re free to farm and ranch.
TIPTON: I don’t know what’s not going to be applicable to the ‘waters of the U.S.’ This is the biggest water grab in American history coming out of the EPA.
Mr. Bonnie, the USDA has stated that the Interpretive Rule only applies to adjacent and neighboring waters. It’s also been said that when USDA is able to show a hydrologic underground connection, however tenuous, you will regulate those waters, even though it falls outside of your stated application of the rule. Can you explain to me how those two statements don’t conflict?
BONNIE: Groundwater in the proposed Clean Water Act Rule is not regulated. I think it’s an exemption that’s fairly clear.
TIPTON: You need to get ahold of the Forest Service, they’re just putting out a directive.
BONNIE: The Forest Service is putting out a directive that will clarify and provide some consistency across the way we address groundwater as part of resource management plans, projects and other things. The purpose of that directive is to provide greater consistency across the Forest Service. It doesn’t provide any new authorities to regulate groundwater. Purely, I think about consistency.
TIPTON: My interpretation of it is that a farmer or rancher could divert legally out of a stream to fill a stock pond or irrigate a field, and will be in violation.
BONNIE: Stock ponds are specifically exempt under the Clean Water Act.
TIPTON: Not if you’re looking at that Groundwater Rule.
The EPA’s proposed rule drastically expands the agency’s regulatory reach by redefining “waters of the U.S.” under the Clean Water Act (CWA) to include virtually every form of surface water, including tributaries and ditches.
The Forest Service’s proposed Groundwater Directive, released in May, expands its reach over groundwater and seeks to establish new bureaucratic hurdles to interfere with private water users’ ability to access their water, including their ability to access water from tributaries or streams that could potentially feed into groundwater.
Combined, the rules could have a severe impact on water users’ — including agriculture producers’ — abilities to access their private water rights.
In May, Tipton and his colleagues urged the EPA and Army Corps of Engineers to withdraw the proposed rule that could amount to the largest federal water grab to date.
Additionally, Tipton joined Small Business Committee Chairman Sam Graves in a letter to EPA Administrator Gina McCarthy highlighting the impacts the rule will have on small businesses.
Tipton first raised concerns in March over the impact the rule could have in Colorado and on the rights of all water users.
Tipton also joined his colleagues in a letter to House Appropriators requesting that no funds in the FY 2015 Energy and Water Development Appropriations and Interior, Environment, and Related Agencies Appropriations bills be made available to implement the new EPA draft rule.
Tipton has been a staunch defender of Colorado and Western water and private property rights since being elected to Congress.
Last month, the U.S. House of Representatives passed Tipton’s legislation with bipartisan support, to uphold state water law and protect private water rights from uncompensated federal takings.
