Some farmers believe EPA overreaches in Water Act clarification

WASHINGTON - It's the rule that some farmers love to hate.

The Environmental Protection Agency in Washington, D.C., again has found itself in the cross hairs of many Iowa farmers and companies with its proposal to clarify the 1972 Clean Water Act with new rules and regulations regarding wetlands. To the agency, it's an attempt to give farming interests clarity after a pair of U.S. Supreme Court decisions that muddied the waters.

To farmers, it's the latest example of federal overreaching.

'This is a big, big fight that we are in the midst of,” said Dale Moore, an executive director at the Washington-based American Farm Bureau. 'We've read the rule, and when you dig down into the fine print, in our opinion the EPA is trying to yet again do an end run on the law that Congress passed back in the 1970s and there have been two Supreme Court rulings about in the past few years.

'The EPA is constantly trying to go beyond the authority that Congress gave them. If they're not changing anything, then why issue this proposed rule? They effectively are changing it.”

The American Farm Bureau has been studying the rule since receiving a leaked copy of it last September. The EPA proposed the rule in March and still is reviewing the comments about it. The comment period ends in October, when the rule presumably would take effect without congressional action.

The EPA says the rule doesn't expand the agency's authority and actually scales back its scope to the amount of waterways the agency regulated in the 1980s. A senior adviser to the agency emphasized to The Gazette that the proposal keeps all current exemptions and exclusions for agriculture. The EPA coordinated with the Army Corps of Engineers to develop the proposal.

'We needed to take a better look at how the science indicates that waters interact with each other,” the official said, speaking on condition of anonymity.

'Our current rule doesn't do that. We made this rule proposal to try to address some of the confusion and uncertainty and inconsistency that surrounds the Clean Water Act.

'We wanted to provide better information, both for the regulated public and the regulators, recognizing that there is a high level of value based on the ability to know what waters are subject to the Clean Water Act and which waters are not.”

The dirt is in the details.

The EPA says seasonal and rainfall streams and wetlands near waterways will be protected, but waterways that 'may have more uncertain connections with downstream water and protection will be evaluated through a case-specific analysis of whether the connection is or is not significant.” The agency will accept comments on other waters.

To critics, the EPA wants to control isolated wetlands and streambeds that have only a tangential relationship to navigable waters. That could include 'farm ponds, drainage ditches, culverts, dams and dry creek beds,” said Sen. Chuck Grassley, R-Iowa, a top critic of the EPA.

That possibly could include control of the amount of nutrients a farmer is allowed to put in the water on his land, attempts to build a fence, and the time and cost of applying for federal permits. To farmers, it's nothing short of a land grab.

It is 'one of the broadest land-control efforts we've seen,” said Moore.

'The EPA has said it's just trying to clarify a Supreme Court ruling that confused things. But we think the Supreme Court didn't confuse anything. The court has said twice that EPA, under the Clean Water Act, has a limit.

'This also overlooks the fact that a lot of these waters that the EPA doesn't regulate are already regulated by state or local authorities. And Congress has already established a line where the EPA's jurisdiction ends.”

At heart is an 'interpretive rule” that lists 56 specific 'conservation practices” that the agency has proposed to 'protect or improve” water quality. Because of Supreme Court decisions in 2001 and 2006, the Army Corps of Engineers has had to make case-by-case decisions on which of the country's smaller waterways are covered by the original 1972 law. That led to different decisions in different parts of the country.

Nancy Stoner, the EPA's acting assistant administrator for water, tried to set things straight July 7 in a blog post.

'The proposed Waters of the U.S. rule does not regulate new types of ditches, does not regulate activities on land, and does not apply to groundwater,” Stoner wrote. 'The proposal does not change the exemption for stock ponds, does not require permits for normal farming activities like moving cattle, and does not regulate puddles.”

An EPA official went further, talking to The Gazette.

'There is nothing in what the agency has done that would preclude a farmer from continuing to engage in the practices that farmer does today,” he said.

'What we've done is to identify 56 individual practices where a farmer would know, without having to ask anybody or check with anybody, that these practices - even if they involve a waterway - do not need a permit. It's not meant to constrict the farmer in any way. It's meant to provide them with more flexibility and more information.”

Congressional reaction

Eastern Iowa's congressional delegation is split.

Grassley, who is a farmer, said ditches, drainage-ways or stream beds on a farmer's property could be at risk of overregulation.

'Redefining what a navigable river is, even claiming jurisdiction in places where water doesn't flow, just shows how out of touch the Obama administration is,” Grassley said.

'The proposed rule is way beyond the scope of the law and is full of loopholes. ... The EPA's power grab has to be stopped.”

But Sen. Tom Harkin, D-Iowa, comes down on the side of the EPA. Harkin reiterated the EPA's line, that all current agricultural exemptions will remain, and called the controversy 'much ado about nothing.”

'Crop and livestock agriculture are having an impact now on the environment than ever before. So we can't continue to do things environmentally in agriculture that we did 40 years ago,” Harkin said.

Democratic Reps. Dave Loebsack and Bruce Braley have pledged to try to coordinate the two interests, with Loebsack saying the EPA's regulations 'must be common-sense and practical,” and that he is concerned that the rule 'will only add confusion and uncertainty for farmers and businesses.”

Likewise, Braley said Iowa farmers 'are the most productive in the world and need the ability to continue to do their jobs as effectively as possible.”

The EPA has no hard deadline for a decision on the issue, saying only that it is aware of the high level of interest and is trying to act quickly.

But Moore said Congress could take action soon. He said appropriations bills winding their way through the House have riders attached that require the EPA to withdraw the proposed rule.

'As much as the EPA would like to point at farmers and the Farm Bureau and say, ‘You guys are making a mountain out of a molehill,' it's not just us who have raised concerns about this.”