EPA power grab: Everywhere water flows

American Farm Bureau Federation
By Don Parrish

The Environmental Protection Agency’s proposal to expand the scope of “navigable waters” subject to Clean Water Act jurisdiction was drafted, according to the agency, to reduce uncertainty. And that it does. It’s very clear the proposed rule is designed to allow the federal government to regulate every place water flows when it rains, including small and remote “waters” and ephemeral drains and ditches.

We all know that water flows downhill and that at some point some of that water eventually finds its way into a creek, stream or river. Yet, based on nothing more than the flow of rainwater along a natural pathway across the land, the EPA wants to call vast areas of otherwise dry land “tributaries” and therefore “navigable waters.”

With its proposal to regulate land that is dry most of the year and miles from the nearest truly navigable water, EPA is hanging farmers and ranchers out to dry. For example, under the proposal, if a farmer wants to build a fence near a ditch on his property, he’d have to apply for a Clean Water Act permit, which costs money and may not ever be approved. The same goes for pesticide applications, which can be an even bigger problem. Crops will grow, fence or not, but if that pesticide application permit doesn’t come through on time – or at all – those same crops could easily be lost or badly damaged. And let’s not forget there are already very stringent rules farmers follow when using pesticides.

Losing a crop could break a farmer, as could the hundreds of thousands of dollars a day EPA is looking to reap if a farmer missteps under this proposed rule.

EPA and other supporters of the proposed rule have made much of the so-called exemption for agriculture, but it offers no protection.

The “normal farming and ranching” exemption only applies to a specific type of Clean Water Act permit for “dredge and fill” materials. There is also no farm or ranch exemption from Clean Water Act permit requirements for what EPA would call “pollutants,” but farmers would call plant nutrients and protection products. Exemptions or not, under the proposed rule, many common and important practices like weed control and fertilizer spreading will be prohibited in or near so-called “waters” without a Clean Water Act permit.

Ultimately, the new permitting requirements that will come with this proposal mean everyday weed control, fertilizer applications or any number or other common farm activities may trigger Clean Water Act liability and section 402 National Pollutant Discharge Elimination System permit liability. If material could incidentally be deposited into features like ditches, ephemerals and other features EPA now plans to drown in federal jurisdiction, farmers and ranchers have something to worry about.

At the same time EPA and the Corps are telling farmers and ranchers they’re got nothing to worry about because the exemptions put them in the clear, the agency is moving forward with a guidance document that will govern how they interpret the “normal farming” exemptions contained in Section 404 of the Clean Water Act.

This interpretive rule makes fundamental changes in how the exemptions for normal agricultural activities at “established” farms will be applied and enforced. Contrary to assertions by proponents, this rule narrows how the exemptions are applied and increases farmers’ liability. Under the interpretive rule, Natural Resources Conservation Service conservation standards that were previously voluntary are now fully enforceable as part of the CWA regulatory program.

Like the proposed Waters of the U.S. rule, the interpretive rule flies in the face of congressional intent. In 1977 Congress amended the Clean Water Act to exempt “normal” farming, ranching and silviculture from Section 404 “dredge and fill” permit requirements. However, EPA and the Corps are now asserting that farmers need Section 404 permits to conduct any of the 56 practices listed in the interpretive rule, despite the fact that those practices qualify as the “normal” farming, ranching and silviculture activities Congress addressed 37 years ago.

While we’re talking about “normal” agricultural practices, also alarming in the proposed Waters of the U.S. rule is EPA and the Corps’ interpretation of “normal farming and ranching” to mean only farms and ranches that EPA determines to be “established” and “ongoing”—not newer or expanded farms and ranches. Where does this leave the children and grandchildren of farmers and ranchers who want to work the land but need to grow the operation to support an expanding family? What does this mean for the billions of people who will need to be fed in the future?

Worried about the answers to those questions and the many threats the proposed rule poses to agriculture, Farm Bureau has launched a website at ditchtherule.fb.org to help farmers, ranchers, landowners and others express the need for EPA to “Ditch the Rule.” Focused on topics and analysis related to the proposed rule, the easy-to-navigate site includes several sections: Take Action, Go Social, Find Answers and Get Resources. We encourage you to visit the site, sign up to learn more, comment on the proposed rule and send tweets using the hashtag #DitchTheRule. You should also voice your concerns to your state and local officials and your U.S. representative and senators.

Don Parrish is a senior director of regulatory relations at the American Farm Bureau Federation. This column was originally published in the August/September 2014 issue of Sugar Producer magazine and is reprinted with permission.

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