The Environmental Protection Agency has proposed a new rule that it says will clarify what types of waters fall under its regulatory jurisdiction. But farmers across the country fear that the agency is overstepping its authority and endangering their livelihoods.
The seeds of the problem were sown with two Supreme Court decisions in 2001 and 2006. How the EPA can enforce the 1972 Clean Water Act was at the heart of both cases.
In Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (2001), the court ruled that the EPA could not regulate the discharge of dredged and fill material because it overstepped its lawful authority. In Rapanos v. United States (2006), the Supreme Court said the EPA could not regulate isolated wetlands, as they did not constitute the “navigable waters of the United States” cited in section 404 of the Clean Water Act.
Because of these two cases, the EPA believes that its regulatory authority has been muddled to the point where it can no longer effectively enforce the Clean Water Act. This was recently illustrated in Oregon, where the U.S. Army Corps of Engineers refused to disclose to the EPA how much oil its dams were discharging into state waters.
The EPA has produced an 88-page regulatory proposal to untangle the issue and increase the number and kind of waterways and wetlands it can regulate. This has led farmers across the country to cry foul. They are fearful that the agency will soon require them to pay for environmental assessments to till the soil near ditches and seasonal streambeds. If the EPA can regulate small ponds on their property or creeks that only exist when it rains, they will need to monitor every discharge that dribbles into these waters – which may include the pesticides that keep their crops alive.
“Everything we do as farmers is based on timing,” says Dean Lemke, a fifth-generation Iowa farmer. “If I have to go to the E.P.A. to figure out if I need a permit because a ditch I’m planting next to sometimes has water in it, that’s time I’m not planting. And if I’m not planting, I’m not making money.”
“It is the height of arrogance and intransigence for EPA to use two Supreme Court defeats as justification to grab even more power then ever,” says Jay Lehr, science director for the Heartland Institute.
“With this, and other regulatory initiatives addressing climate change, EPA is circumventing Congress and making law on its own,” says Craig Rucker, executive director of the Committee for a Constructive Tomorrow.
A coalition of farmers have joined together to create Ditch the Rule, which is urging Congress to oppose the EPA.
But Jan Goldman-Carter, a lawyer who works with the National Wildlife Federation on water issues, says a draft of the new regulations does not merit such vitriol.
“The draft guidance is clear that irrigation ditches, drainage ponds and even groundwater are not considered waters of the U.S. Nor are gullies, rills, swales and other erosional features,” she told The New York Times. “This has been explained over and over again.”
In a document explaining the rule’s exclusions and exemptions for agriculture, the EPA states that it and the Army Corps have listened to concerns raised by farmers and the agricultural industry for several years and that,
“The proposed rule is consistent with the more narrow readings of Clean Water Act protection by the Supreme Court. Any normal farming activity that does not result in a point source discharge of pollutants into waters of the U.S. still does not require a permit.”
Moreover, the proposed rule will not cover “groundwater, tiles drains, increased regulation of ditches, protect any new types of waters or affect areas generally previously excluded from jurisdiction.”
But this has not assuaged the anger from farmers and certain policymakers. In a March 6 letter to the White House and EPA administrator Gina McCarthy, Congressman Bill Shuster (R-Penn) writes that these new regulations are part of a “pattern of an imperial presidency that seeks to use brute force and executive action while ignoring Congress.”