Ag leaders wary of Clean Water Act "power grab"

Published online: May 01, 2014
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Agriculture leaders say a rule proposed by the U.S. Environmental Protection Agency and the Army Corps of Engineers to clarify Clean Water Act protections has raised more questions than it answered.

Republican opponents have described the proposal as an “EPA power grab” that would dramatically expand the federal government’s oversight over water and impose new burdens on property owners.

EPA officials, however, insist the changes would in no way broaden the agency’s regulatory authority and would retain—and even expand—exemptions for agriculture.

A 90-day public comment period commenced April 21 with the publication of the proposed rule in the Federal Register.

Members of Congress, including Sen. Pat Toomey, R-Pa., and Sen. Mike Crapo, R-Idaho, have already requested that the public comment period be extended to the maximum 180 days.

EPA spokeswoman Julia Ortiz said the agency has not yet determined if an extension will be granted.

According to EPA, Clean Water Act protections were complicated by Supreme Court rulings in 2001 and 2006, and the new rules revisions don’t protect “any new types of waters that have not historically been covered.”

Ortiz points out that 56 normal farming practices are excluded from permitting, including irrigation canals or laterals, prescribed burning and stream crossings by livestock.

“The goal is to make things easier and more clear,” Ortiz said.

Yet the proposed rule “clarifies” that seasonal streams are protected, which hasn’t been the historical interpretation, said attorney Dan Steenson, who represents several irrigation districts and the Idaho Dairymen’s Association. Steenson said the proposal also implements a test to determine on a case-by-case basis if a significant connection exists between a water source and waters of the U.S.

Though EPA exempts agricultural discharge, Steenson worries that under the proposed rule irrigation canals and ponds may be deemed “waters of the U.S.” and subject to regulation.

Crapo spokesman Lindsay Nothern fears that agricultural exemptions may be moot in many cases due to a recently added interpretive rule specifying that discharge should still be regulated if it threatens to “destroy” wetlands or waters.

In a statement, Toomey said the proposals are “very troubling for landowners, certainly farmers.”

“EPA is now claiming it has the regulatory power to regulate virtually all outdoor water,” Toomey said, adding the underlying law allows for regulation of only navigable waters. “I’m pushing back as hard as I can. I hope people will bury them with emails and letters enumerating their concerns with the regulation in the hope that we can prevent this from taking place.”

Bob Naerebout, executive director of Idaho Dairymen’s Association said his organization has hired Steenson and a hydrologist to prepare public comments on its behalf.

“We will scrutinize it very closely to make sure it does what EPA says it will do and no more,” Naerebout said.

National Potato Council Executive Vice President and CEO John Keeling said his organization is also reviewing the rules to prepare comments.

“We’re concerned EPA wants to regulate every single puddle,” Keeling said.