Illinois Farmer Today - Water Rule Moves Forward; Ag Groups React
News Article
by Gene Lucht
Congressman David Young, R-Iowa, was at a field day May 29 looking at wetlands and conservation structures.
But, the conversation kept swerving away from farm practices to the EPA's recent announcement regarding the "Waters of the United States."
The WOTUS final rule, released May 27, has been anticipated by farmers and lawmakers for months. Now that it is out, everyone is trying to figure out what it means for farmers.
Nobody is completely sure, but an awful lot of people are concerned.
Young says he doesn't think the EPA is necessarily looking at all the facts when making calls such as this one, which is related to farming practices and the Clean Water Act.
"They don't take into consideration the real-life consequences of what they are rolling out," he says, adding that rules such as the new WOTUS one have the potential to drive up the cost of living or to increase the cost of agricultural production.
A push to scrap the current WOTUS rule and start over has been passed in the House and has a chance of passing in the Senate, Young says. The real question may be whether the votes would be there to override an almost certain presidential veto.
And, he says it is possible farmers or others may end up taking the EPA to court over certain aspects of the new rule.
Meanwhile, ag groups are poring over the nearly-300-page rule in an effort to determine what the effects will be for farmers. The initial response by many has been that they strongly oppose the rule. But, a few say the final rule represents a distinct improvement over the earlier proposal.
That much is true, says Roger McEowen, who heads the Center for Agricultrural Law and Taxation (CALT) at Iowa State University.
"They tweaked it," McEowen says.
He says the final rule identifies eight categories of jurisdictional waters over which EPA and the Army Corps "could" exercise Clean Water Act jurisdiction.
They include: traditional navigable waters, interstate waters, territorial waters, impoundments of jurisdictional waters, tributaries, adjacent waters, specific waters subject to case-specific significant nexus analysis, and other waters subject to case-specific significant nexus determinations.
The final rule does not alter the EPA's treatment of traditional waters, interstate waters, territorial seas or impoundments of jurisdictional waters. There is wide agreement the Clean Water Act was meant to cover those.
The questions begin when the discussion turns to items such as "tributaries" or "adjacent waters."
EPA altered its definition of "adjacent" waters in the final rule. There was some change in the language regarding the "case-specific nexus" between the proposed rule and the final rule, McEowen adds.
Certain ditches and puddles are now specifically excluded from jurisdiction, he says. Those include: waste-treatment systems, prior converted cropland, artificially irrigated areas that would revert to dryland should irrigation cease, artificial lakes and ponds created in dry land (such as stock watering ponds), settling basins, small ornamental waters created in dry areas, artificial reflecting or swimming pools, ditches with ephemeral flow that are not a relocated tributary, ditches with intermittent flow that are not a relocated tributary or drain wetlands, groundwater (including groundwater drained through subsurface drainage systems), puddles and stormwater control features.
Although the final rule is more limited, McEowen says, it still marks an expansion of agency water-quality jurisdiction. It doesn't technically add any additional permitting requirements for farmers, but there is concern about some of the definitions and whether they will still end up leading to more regulation and permitting requirements.
Last week's EPA announcement was long awaited in the agricultural community. Over a year ago, EPA issued a proposed rule on the subject and the response at that time by farmers and agricultural organizations was overwhelmingly negative. Since then, it received over a million public comments and held hundreds of meetings.
Iowa Farm Bureau President Craig Hill, however, isn't convinced.
"I still find the ambiguity in the definitions to be very, very disturbing and disappointing," Hill says.
EPA officials say their goal was not to make the rule more stringent but simply to clarify the law. They point to 2001 and 2006 U.S. Supreme Court rulings with murky definitions of waters under their jurisdiction, making a new, clearer rule necessary. No existing agricultural exemptions were eliminated and some were added, according to Ken Kopocis, head of EPA's Office of Water. He also says no new permitting requirements were added.
"This is no expansion of jurisdiction under the rules," he says. "It does not interfere with private property rights or land use."
But, Hill says the EPA is not accepting definitions of various practices from other agencies, such as the USDA. Hill says the new rule could allow the EPA to require more permits or make farmers subject to more enforcement than in the past by putting forth the argument those farmers were always in violation of the Clean Water Act.
"You don't have to be a lawyer to understand how wiggly their definitions are," he says, adding "the scope of this is very expansive."
Some agricultural organizations, while not thrilled with the final rule, issued statements expressing some support.
"While the rule is not perfect from our perspective, the final rule is an improvement over the proposed rule," said National Farmers Union President Roger Johnson.
"We are encouraged by the refinements and clarifications that EPA and the Army Corps have undertaken in this process," added John Crabtree of the Center for Rural Affairs in Lyon, Neb.
Others were less supportive.
"Under the guise of clarifying the Clean Water Act, the EPA and the Army Corps added ambiguous language to the law that leaves regulation up to the subjectivity of the individual regulators across the country," said Philip Ellis, president of the National Cattlemen's Beef Association.
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