Pressure builds against EPA water proposal


Issue Date: June 18, 2014
By Kate Campbell
Standing by a low spot at the edge of a harvested triticale field, Solano County hay grower Sean Favero said he is concerned proposed changes to the federal Clean Water Act would turn this seasonal wet patch into federally regulated “waters of the United States.”
Photo/Kate Campbell
If adopted by the U.S. Environmental Protection Agency, this moist swath in a field near Dixon could become regulated as “waters of the United States.”
Photo/Kate Campbell

Proposed changes to the federal Clean Water Act have roiled farmers across the nation and created an uproar among many other water users—including cities and counties with parks and recreation areas, golf courses and local water agencies. If adopted, the proposed rule changes would expand the definition of "waters of the United States" to potentially allow federal agencies to regulate virtually every area of ground in the nation that gets wet or has flow during rainfall.

California Farm Bureau Federation leaders were in Washington, D.C., in mid-May to explain to lawmakers face to face the damage the proposed changes could have on food production. They called for more time to review and comment on the proposal.

The U.S. Environmental Protection Agency said last week it will extend the comment deadline on the proposed rule, allowing farmers, ranchers and other interested stakeholders more time—until Oct. 20—to comment on its proposed redefinition of waters of the U.S. The extension adds almost three additional months to the comment period, which had been scheduled to end July 21.

Comment on a companion interpretive rule governing agricultural exemptions that accompanied the waters of the U.S. rule also will be extended—from June 5 to July 7.

The Clean Water Act was signed into law in 1972 to protect the nation's "navigable" waters from pollution. The current proposal to amend the act would greatly expand EPA's regulatory powers. Farm policy experts say Congress gave states, not the EPA, primary responsibility for land use oversight.

Farm Bureau, together with dozens of other business groups, is protesting the proposed changes.

Farmers and ranchers say the proposal would expand regulatory authority to many common land features including puddles, ponds, ditches, and temporary and small wetlands. The proposal would give federal agencies power to regulate and potentially prohibit many common land-use and farming practices on or near privately owned land.

Solano County hay and forage farmer Sean Favero said the proposed rule change gives him serious cause for concern. Fields where he plants alfalfa, wheat and triticale can retain seasonal moisture in low spots, which under the proposed changes could trigger additional permits and fees, including prohibitions against planting at all.

These are naturally occurring land contours that don't connect to streams or other bodies of water, he said, adding that he's concerned about regulations made thousands of miles away by people who don't know what's going on at ground level that could further complicate or prevent him from farming. Favero made those points as part of the CFBF federal policy delegation to Washington.

"Judging by the amount of interest from legislators in what we had to say about the proposed changes to the Clean Water Act, I'd like to think our office visits had something to do with the extension announced last week," Favero said.

CFBF Federal Policy Division consultant Erin Huston said extension of the comment periods "allows us more time to flesh out our objections and explain how the proposal sits on top of the regulatory layers California already has to protect water quality."

The House Transportation and Infrastructure Committee held a hearing last week on the proposed changes, and the House Agriculture Committee is scheduled to hold a hearing this week on the possibility of an agricultural exemption under the proposed rule changes, Huston said.

"That hearing will address our concerns about how the proposed rule would specifically tie in with the U.S. Department of Agriculture's voluntary conservation practices established by farmers and ranchers through the Natural Resources Conservation Service," she said.

"We spent a lot of time talking to legislators while we were in Washington and I felt they listened closely to what we had to say," said Kris Gutierrez, partner in a San Joaquin County vineyard management company and a participant in the CFBF Washington trip. "I believe we got our points across and appreciate the thoughtfulness of our lawmakers."

American Farm Bureau leaders said the EPA has "misrepresented" its proposed rule changes and downplayed impacts on land use.

"If more people knew how regulators want to require permits for common activities on dry land, or penalize landowners for not getting them, they would be outraged," AFBF President Bob Stallman said, noting that the proposal "broadly expands federal jurisdiction and threatens local land-use and zoning authority."

Stallman described the EPA proposal as "an end-run around Congress and the Supreme Court."

The proposal to regulate everyday farming practices isn't just impractical, it's illegal, Stallman told the House Subcommittee on Water Resources and Environment last week.

The EPA has said farmers would face less regulation under its proposal. In response, Stallman said the rule would micromanage farming via newly mandated procedures for fencing, spraying, weeding and more. Obtaining permits, meanwhile, could delay time-sensitive tasks for months, potentially ruining crops in the process.

"EPA is deliberately misleading the regulated community about the impacts on land use," Stallman said.

More information about efforts to modify the EPA proposal may be found online at ditchtherule.fb.org.

(Kate Campbell is an assistant editor of Ag Alert. She may be contacted at kcampbell@cfbf.com.)

See also this week's commentary "Cutting regulations would stimulate the U.S. economy."

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.