If it doesn’t float your boat, should it still be protected by the Clean Water Act?
It’s a question that has launched a thousand op-eds, mostly in farm publications, tens of thousands of public comments to the Environmental Protection Agency and countless exchanges between fans and critics of federal water regulations.
In April, the Environmental Protection Agency and the Army Corps of Engineers proposed rules they say clarify the agencies’ jurisdiction over “Waters of the U.S.,” or the definition of which waterways are subject to Clean Water Act protections. A pair of U.S. Supreme Court rulings during the last decade created a murky regulatory environment, so the federal government has issued 370 pages of rules seeking to clarify exactly where federal authority begins and ends.
Almost everyone agrees or concedes that the EPA has the authority to regulate “navigable” waterways, the major rivers and lakes where boats and other watercraft can travel. But the proposed definition of U.S. waters also includes much smaller streams, tributaries and nearby wetland areas. It includes “intermittent” or “seasonal” waterways that might exist only during rainy periods.
It makes sense, according to regulators, to protect these small building blocks of a watershed, because that water ends up in those larger, navigable waterways. And the agencies insist that the definition is not really an expansion of federal authority. The Clean Water Act has always protected these smaller water sources. The rules are simply a clarification.
“Our proposed rule will not add or expand the scope of waters,” said Kris Lancaster, spokesman for EPA Region 7, which includes Iowa.
Agriculture interests, including the Farm Bureau Federation and others, strongly disagree. They paint a bleak picture of farmers having to obtain expensive permits to work the land because their usually dry ditches, ponds and even lowlands would become regulated waterways. The rules have been assailed from farm states and state capitols to the halls of Congress, where they’ve been dubbed an overreach by members of both parties.
Some have suggested that the EPA would be able to regulate the rain dripping off a producer’s feed cap or a spit into the dust. An op-ed in the conservative Washington Times compared it to an “invasion by hostile troops.”
“Want to build a fence or spray for weeds? Now, you’ll need a federal permit! What’s more, you could be subjected to a $37,500-per-day fine if you’re not in compliance,” said Iowa Farm Bureau President Craig Hill in a column that appears in these pages today.
“The proposed rule does not expand regulation of ditches,” Lancaster said. “The proposed rule would actually regulate fewer ditches than are currently covered.” Same goes for farm ponds, he said.
The EPA also insists that farmers who adopt one or more of 56 conservation practices would exempt them from permits under the Clean Water Act.
“The proposed rule does not regulate land or land use. Fewer waters would be covered by this rule than were protected in the ’70s, ’80s or ’90s,” Lancaster said.
As fascinating as it is to watch this tempest in a drainage ditch, we’re wondering how all of this advances the issue of water quality. When you boil it all down, what it amounts to is the usual and tiresome turf battle between regulators and interests who perennially assail regulation.
Iowa is a state with scores of waterways, big and small, that are impaired by pollution. Does a clearer definition of jurisdiction do anything to change that?
“The long and short of it is we believe the EPA approach is not helpful relative to our concerns about agricultural runoff and its impacts on surface waters,” said Bill Stowe, CEO of the Des Moines Water Works, which provides drinking water to Iowa’s largest city. Stowe contends that seasonal waters are more of an issue for western states, and that the new rules would have little impact in Iowa.
“(The EPA’s) continued failure to see non-point-source polluters as within their regulations is a huge concern to us,” said Stowe, whose operation had to install a costly special filter system to remove nitrates from Des Moines’ drinking water. “What they have done is perhaps helpful to our friends and colleagues out west, but from our vantage, only reinforces their failure to move forward on regulating agricultural dischargers of pollutants.”
So the real issue, it seems, isn’t where regulators can regulate, but what they do to actually improve water quality. In Iowa, leaders have opted for a voluntary approach, providing incentives to farmers and livestock producers who adopt conservation practices.
But those efforts, remarkably, have struggled to receive adequate funding from Statehouse leaders.
Then, last month, Gov. Terry Branstad used line-item vetoes to strike $11.2 million that would have gone for soil and water conservation programs administered by the Iowa Department of Agriculture and Land Stewardship. Many of those vetoed dollars would have been matched by money from farmers and communities embarking on watershed improvement projects, so the effect of the vetoes is actually doubled. Thousands of farmers have applied to participate.
The Branstad administration now is backing an effort to remove a state rule requiring builders to preserve topsoil on construction sites with hopes of controlling runoff and pollution.
Everywhere we turn, government is letting us down when it comes to cleaning up our waters. As we’ve learned since the 2008 flood, water conservation and flood mitigation go hand-in-hand. So it’s tough to care too much about the EPA’s jurisdiction when even in areas where regulatory jurisdiction is crystal clear, precious little has been done.
The Farm Bureau and other groups would do well to steer some of the energy they’re using to assail the proposed EPA rule toward their allies at the Statehouse, including the governor, and urge them to put meaningful money into voluntary conservation programs. If those programs fail, involuntary regulation becomes the only option.
Comment on the proposed rules is open until Oct. 20, and www2.epa.gov/uswaters is the place to get more information. And if you care about water quality, also contact the governor’s office at governor.iowa.gov/contact/ and your state lawmakers. A list of lawmakers can be found at www.legis.iowa.gov/legislators.