November 19, 2014
www.gfb.org
Vol. 32 No. 46
GFB URGES WITHDRAWAL OF PROPOSED FEDERAL WATER RULE Georgia Farm Bureau urged the EPA and the U.S. Army Corps of Engineers to withdraw their proposed rule, “Definition of ‘Waters of the United States’ Under the Clean Water Act” (CWA) in comments submitted on Nov. 13. GFB contends the proposed rule infringes on private property rights by circumventing the will of Congress and ignoring U.S. Supreme Court decisions on the issue of CWA jurisdiction. Additionally, the rule will lead to increased litigation as landowners seek to recover those rights. “Georgia Farm Bureau believes the rule proposed by the federal agencies infringes on the private property rights of landowners by its broad definition of ‘tributary,’” Duvall wrote. “The definition of a tributary in the proposed rule is so expansive that it would include many areas that most observers would consider to be dry land – not wetlands – and certainly not navigable waterways.” GFB contends that, contrary to the agencies’ stated intent to bring clarity to the Clean Water Act, the proposed rule would create more confusion. “This rule puts landowners in the position of not knowing whether or not bodies of water or even dry land on their property are subject to Clean Water Act jurisdiction. This scenario affects how a landowner can use the property and the value of the property should the landowner decide to sell it. Jurisdiction will not be known until a federal field agent arrives to make a highly subjective judgment,” Duvall wrote. GFB also disputed the validity of the proposed rule’s reliance on Justice Anthony Kennedy’s “significant nexus” test in determining CWA jurisdiction. Duvall noted that Kennedy’s “significant nexus” test did not represent the dominant opinion in the court’s decision in the case of Rapanos vs. United States in 2006. In the plurality opinion written by Justice Antonin Scalia, the significant nexus standard was described as a gimmick to rewrite the CWA. Duvall said the rule would negatively impact the way landowners use their property, as well as leading to additional CWA permit requirements for land use on all but the most remote and unconnected waters. GFB’s comments were in addition to the organization’s statewide campaign asking for the rule to be withdrawn. The campaign, titled “Ditch the Rule,” was part of a national campaign of the same name by the American Farm Bureau Federation. Georgia Farm Bureau’s campaign generated 15,558 comments. Overall the agencies received more than 250,000 comments on the proposed rule, which was published in the Federal Register on April 21.