Water Proposal Stirs Ag Opposition  

April 23, 2014   

Despite earlier government claims that a proposed rule under the 1972 Clean Water Act would have a minimal impact on agriculture, the actual form of the proposal discloses a different prospect. Some routine farming practices would likely need federal permits because of perceived potential connections and impacts on downstream waters. Opposition to the proposed rule is mounting in the agriculture sector and also in Congress.

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers published a 107,000-word discussion of the proposal in the Apr. 21 Federal Register. Public comments may be sent to the EPA until July 21 for its review before a final rule is issued.

The two agencies devised the proposed rule because of regulatory uncertainties resulting from a pair of U.S. Supreme Court opinions dealing with the Clean Water Act. Numerous trade associations requested greater clarity in the regulations. Among those from agriculture was the American Farm Bureau Federation, which upon analyzing the actual proposal is now an active opponent on the grounds of agency overreach. It is also requesting an extension of the public-comment period to 180 days because of the complexities of the proposal.

The new rule would expand the concept of “waters of the United States” falling under federal jurisdiction by adding small tributaries and even ditches carrying permanent or intermittent flows as long as this water eventually moves downstream. The original Clean Water Act states an imprecise regulatory mandate to “maintain and restore the chemical, physical and biological integrity of our Nation’s waters.” The proposed rule would extend EPA tracking of potential impairments of that “integrity” to runoffs from farm fields far from the “navigable waters” that are the historic limit of federal control. Conceivably even the water from field tiles draining into a ditch could open the entire field to a need for EPA permitting.

The proposed rule grants a permitting exemption to farming for 53 practices endorsed by the U.S. Department of Agriculture’s Natural Resources Conservation Service, but Mike Wenkel, Michigan Potato Industry Commission executive director, points out that that exemption “excludes the application of fertilizer, crop protectants and livestock manure.” Thus, he notes, particular fields, based on how water aggregates on them and moves out and may be connected to downstream flows, would either have to be left untreated or be subjected to the EPA permitting process.

The EPA’s website states that “the proposed rule will preserve current agricultural exemptions for Clean Water Act permitting, including: Normal farming, silviculture and ranching practices. These activities include plowing, seeding, cultivating, minor drainage and harvesting for production of food, fiber and forest products.” But the expansion of the concept of tributary waters, according to a Michigan Farm Bureau example, would bring as much as 80% of prime farmland in Gladwin County under “waters of the United States” jurisdiction and subject to EPA permitting for soil and plant treatments.

A new tool for the EPA is the term “significant nexus” from a Supreme Court opinion referring to a potential connection of upstream activity and downstream impact. Since “significant” is a subjective judgment, the agency would gain added discretionary powers in its administration of the Clean Water Act.

The proposed rule has sparked an intense reaction in Congress led by Rep. Chris Collins, a Republican from a rural district between Buffalo and Rochester in western New York. He has drafted a letter to the EPA, co-signed by Democratic Rep. Kurt Schrader, a former practicing veterinarian from a suburban district outside Portland, Ore. They are sending a letter to the EPA administrator and the Secretary of the Army citing the flaws in the proposed rule and requesting the agencies to withdraw it. Other representatives have added their signatures to the letter. Wenkel will be in Washington, D.C., next week visiting members of the Michigan Congressional delegation to explain the issue and urge them to sign the Collins letter if they have not already done so.

 The Weekly Potato Report