DES MOINES, Iowa – EPA’s proposed rule out in late March concerning waters of the United States has been a tough sell to the agriculture sector, despite assurances from EPA that agricultural exemptions to the Clean Water Act remain in place, along with new exemptions for 56 specific conservation practices.
The proposed rule out last week seeks to define “Waters of the United States,” not just as navigable waters, but also tributaries and adjacent waters. If a certain body of water’s relationship to “waters of the United States” is unclear, EPA proposes a case-specific examination of whether or not that body of water’s nexus, or connection, affects waters downstream.
Agricultural groups aren’t sure the proposed rule does much to help producers navigate the Clean Water Act. Iowa Farm Bureau Environmental Policy Advisor Rick Robinson, above, says the regulatory definitions in the proposed rule still invite too much interpretation.
“I know they claim there’s clarification here, but frankly what it does is identify new waters that will be regulated, and have potential to be regulated to the federal government,” says Robinson. “We talk about tributaries, we talk about those waters that are next to or connected, the federal waters that are already regulated. And it says on a case-by-case basis. So it really opens the door to ditches, drainage ditches, road ditches, wet spots in corn and soybean fields that had the potential to be regulated.”
According to Robinson, uncertainty over what will and won’t be regulated has the effect of discouraging farmers from investing in conservation practices, if they feel EPA might later slap them with a fine.
“It affects them because of the conservation plans that they’re going to have this spring,” Robinson says. “The window usually for installing these new conservation structures is oftentimes short. When you’re trying to get it done before spring planting for example or in the fall after harvest. Sometimes you can do that in the summer too but it’s tougher when the crops are planted. So the window is short to do this and then making your planting decisions following that and get the planting done. And so, it does cause farmers to think twice about doing conservation work that they would normally do this spring, and delay that, which isn’t a good thing, we know. Especially when they’re trying to support the Iowa Nutrient Reduction Strategy.”
American Farm Bureau President Bob Stallman says the EPA proposal poses a serious threat to farmers, ranchers and other landowners. He says EPA’s assertion that the new rule reduces uncertainty is true, but he says that’s because almost every feature where water flows or stands after a rainfall is federally regulated. Stallman also argues that there’s no legal right to a Clean Water Act permit, meaning farmers and ranchers who need a permit could be denied one by the EPA or the Army Corps of Engineers, who co-wrote the proposed rule.
Stallman says AFBF will dedicate itself to opposing the proposal, citing multiple decisions in which courts ruled Congress did not intend “navigable waters” to apply to all waters.
Iowa Senator Chuck Grassley is also unimpressed by the rule. Grassley says the 372-page document falls short of its goal to clarify which waters are and aren’t subject to the Clean Water Act, stating that the rule “muddies the water of a dry creek.”
Grassley takes issue with the proposal on a higher level as well; he sees the proposed rule as an overreach of Constitutional authority on the part of the Obama administration.
“King George was running this country before the Revolutionary War,” Grassley observes. “The people of this country didn’t like that. So they wanted to make sure they protected us from that, in the past. So they set up three branches of government: executive, legislative and judicial, so one person couldn’t do whatever he wanted to do like King George did. Well, now we have the President saying ‘If Congress won’t, I will; I’ve got a pen and a phone, and if Congress won’t, I will.'”
Grassley argues it’s not just the rule that’s overreaching. As the Congressional Research Service points out, the definition of “waters of the United States” has been changing since the Clean Water Act passed in 1972. Grassley thinks the latest proposal continues to confuse the issue.
“So ‘navigable river’ is someplace boats of certain size can go,” says Grassley. “What does the EPA director do? They assume authority over riverbeds that don’t even have water in them; where you can’t even paddle a canoe. And so, you know, this is just usurpation of power. So you’ve got the president, very authoritarian, in a dictatorial manner, trying to usurp the power that the Constitution gives to the elected representatives of the people.”