Farm groups fuming over new EPA water rule

WASHINGTON – Farm and livestock groups on Wednesday warned that the Obama administration's new regulation to curb pollution in small waterways and wetlands could infringe on their land rights and saddle them with higher costs — concerns that White House officials said were unfounded.

The Environmental Protection Agency and the U.S. Army Corps of Engineers said the rule is needed after a pair of Supreme Court rulings had called into question the reach of the 1972 Clean Water Act on small streams, tributaries and wetlands.

EPA Administrator Gina McCarthy said the rule will place under federal oversight waterways that have a "direct and significant" connection to rivers, lakes and other bodies that are already protected downstream.

The EPA and Army Corps said they would only regulate waterways that show physical features of flowing water, and oversee just those ditches that act like streams and can carry pollution downstream. An estimated 3 percent more waterways would be covered by the Clean Water Act.

White House officials called the rule "a historic step for the protection" of water that is needed to prevent pollution and protect Americans, including about 117 million people who get their drinking water from streams lacking sufficient oversight before the new rule was released Wednesday.

President Barack Obama said the rule will "ensure polluters who knowingly threaten our waters can be held accountable."

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Despite those assurances, farm and livestock groups said they fear the rule overreaches by expanding the scope of "navigable waters" protected by the act — potentially subjecting ditches, stream beds and self-made ponds on their property to the new oversight.

Farmers worry that as a result they would have to pay for costly environmental assessments and apply for more permits.

Craig Hill, who is president of the Iowa Farm Bureau Federation and produces corn and soybeans with his son in Milo, said the administration seems determined to expand its jurisdiction by forcing a change in the scope of the Clean Water Act. He said that should be left to lawmakers in Congress.

"I'm still confused which part of my farm is going to be under their permitting process and which is not, and what I do read suggests expansion, not contraction. It doesn't define the boundaries, only creates new uncertainty," Hill said. "This rule should be withdrawn."

Debating the scope

Bob Stallman, president of the American Farm Bureau Federation, said while the organization is taking a careful look at the final rule to determine how to respond, he remains skeptical whether the EPA took into account feedback from farmers and ranchers.

Stallman also questioned whether the EPA "transgressed clear legal boundaries" put in place by Congress and the courts by choosing to do more to regulate land use, rather than protect water resources.

"We find little comfort in the agency's assurances that our concerns have been addressed in any meaningful way," Stallman said.

Farm groups did not say whether they intend to file suit to block the water rule, but those who have followed the issue have long predicted litigation, unless the EPA made major changes.

McCarthy said the final rule doesn't create any new permitting requirements for agriculture, maintains previous exemptions and exclusions — and even adds exclusions for waterways such as artificial lakes and ponds.

"This rule will not get in the way of agriculture," McCarthy told reporters. "Farmers, ranchers and foresters are all America's original conservationists, and agricultural activities like plowing, harvesting and moving livestock across a stream have long been exempt from the federal clean water regulations, and this rule will not change that."

Farm groups and lawmakers in Congress have called the EPA's push a case of overreach, with Republicans moving forward with legislation that would block or delay the rule. The GOP-led House, including two dozen Democrats, voted to delay the measure earlier this month. The Senate is considering similar action.

Iowa lawmakers protest

Sen. Chuck Grassley, a Republican who has cosponsored legislation that would define the scope of the Clean Water Act, said it appears the EPA tweaked a bad rule and made "it slightly better."

Still, he renewed his call for the rule to be completely overhauled.

"The indifferent attitude that the EPA took toward agriculture is a real concern for Iowans who know the impact agriculture has on the state's economy," Grassley, a farmer, said. "At first glance, the rule still appears to be a problem for agriculture.

"The rule could result in significant red tape and expense for Iowa farmers as they make routine decisions about how best to use their land, even ironically hampering projects to improve water quality."

Sen. Joni Ernst questioned whether the agency seriously considered comments and input from those who will be directly affected.

"The EPA wants to continue this overreach, expanding its power over family farms, small businesses, ranchers and other landowners in our rural communities," she said. "The EPA has repeatedly ignored the legitimate concerns raised throughout this process."

Protecting waterways

Supporters of the rules — led primarily by environmental groups and some Democrats — said the government's actions would protect waterways that have been vulnerable and unprotected since the Supreme Court rulings, one in 2001 and a second in 2006.

"Iowa's rivers — where we swim, fish and go boating — can only be clean if we protect the streams that feed them," said John Rumpler, senior attorney for Environment Iowa. "That's why today's action is the biggest victory for clean water in a decade."

What the Clean Water Rule does

The Environmental Protection Agency and the U.S. Army Corps of Engineers finalized the Clean Water Rule to protect streams and wetlands that contribute to the nation's water resources, although several agricultural and business groups fear it will infringe on private property rights.

Here's some of the things the EPA says the rule will do:

• Defines and protects tributaries that affect downstream waters. The rule says that a tributary would warrant protection if it shows features of flowing water — a bed, bank, and ordinary high water mark.
• Clarifies how far safeguards extend to nearby waters. The rule protects waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters.
• Protects U.S. regional water treasures. The rule protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.
• Focuses on streams, not ditches. The rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. Ditches that are not constructed in streams and that flow only when it rains are not covered.

Read much more about the EPA rule online at: www2.epa.gov/cleanwaterrule.

Contact Christopher Doering at cdoering@gannett.com or reach him at Twitter: @cdoering