South Bend Tribune - Farmers say EPA rule will be a costly hindrance

News Article

By Lincoln Wright

After a recent rainfall, Charlie Houin looked out over one of his cornfields in Marshall County as a clear stream of water flowed beneath him. With the summer's high rain levels flooding fields, drainage systems and the streams that carry excess water away are crucial for farmers to maintain healthy crops.

But Houin, and farmers across the country, are now in a fight for control over these small waterways -- battling a new rule in the Clean Water Act opponents say will be overly burdensome and costly to the agriculture industry.

Going into effect Aug. 28, the Clean Water Rule, released last month by the Environmental Protection Agency and the U.S. Army Corps of Engineers, more precisely defines what waters fall under federal regulation.

Houin said he not only sees this as one of the EPA's biggest land grabs in history, but he's worried the permit process is going to be crippling when he needs to repair ditches, waterways and drainage systems for his farm. When you have only one chance a year at the planting season, he said, having farmland and waterways tied up in an approval process will be costly.

In the original language of the Clean Water Act, signed into law in 1972, up to 60 percent of the nation's streams and millions of acres of wetlands lacked clear protection, according to the EPA.

Before, the Clean Water Act clearly only regulated navigable waterways, such as the St. Joseph River or the Great Lakes. The latest rule is now specific on protecting smaller tributaries, streams and wetlands that, according to EPA studies, still affect the health of larger downstream bodies of water.

"The science is very clear that the headwater has an impact on downstream water quality," said Todd Royer, a water resource professor with Indiana University's School of Public and Environmental Affairs. "So if the goal is to protect downstream water supplies, it (the rule) is important."

But the American Farm Bureau says the rule is far worse than the agency first feared, adding that the rule was never really about protecting water sources. In a statement released last month, Bob Stallman, president of the AFB, said the rules were intended to allow the EPA to regulate any activity on land the agency chooses to.

"Under the new rule, just about any patch of land might be found to be 'waters of the U.S.,' " Stallman said in his letter. "The rule gives EPA and the Corps the trump card."

But the EPA says farmers have nothing to worry about because the rule doesn't add new regulations and doesn't protect waters "that have not historically been covered."

The rule focuses on tributaries and streams, and doesn't regulate "most ditches," according to the EPA, and it preserves agricultural exemptions from permitting, like "minor drainage." But when the law's language has been unclear for so long, it appears to have increased regulation, said Justin Schneider, senior policy adviser for the Indiana Farm Bureau. The biggest concern for farmers, Schneider said, comes down to the EPA's definition of a tributary.

The water rule states that a "tributary must show physical features of flowing water -- a bed, bank and ordinary high water mark -- to warrant protection," as well as connecting to a larger body of water.

Discussing the rules with The Tribune, Houin stood near one of his small waterways that, he said, he has always thought of as a ditch and has never had regulatory issues with. But based on the EPA's definition, Houin's small "ditch" could be considered as a tributary because it has continually flowing water that empties into the nearby Yellow River.

This is a major problem, Schneider said, because no matter what a farmer may think a waterway is, it comes down to the EPA's interpretation. A farmer could be in violation and not realize it, he said, calling it "an issue with potential for big repercussions." Beyond having to obtain expensive federal permits, the Indiana Attorney General's Office said farmers could face civil penalties up to $37,500 a day for violating the new rule.

But the EPA had extensive outreach after the initial proposal, with more than 400 meetings across the country and more than a million public comments, Jennifer Colaizzi, an EPA spokeswoman, said in a statement to The Tribune. EPA officials visited farms in nine different states, which didn't include Indiana, Colaizzi said in the statement, because farmers and ranchers were among the most crucial voices who weighed in before the rule was finalized.

"In this final rule, we've provided additional certainty that they'll retain all of their Clean Water Act exemptions and exclusions -- so they can continue to do their jobs, and continue to be conservation leaders," Colaizzi's statement read.

Brian Deese, a senior adviser at the White House, told the Washington Post that the only people with reason to oppose the rule are polluters who need to be held responsible for their actions. But Houin argues the rule isn't just going to hurt those recklessly polluting.

"We are not trying to pollute streams by any means," Houin said, after detailing the high-tech planning that goes into the use of fertilizers to avoid overtreating fields. "Everything is well planned out before it's done. We are proactive about reducing the amount of what's going into water."

Beyond the fear farmers have, many legislators are outraged, calling the rule a power grab by the Obama administration. U.S. Rep. Jackie Walorski, R-Jimtown, called it an over-reach that is a solution waiting for a problem to present itself.

Farmers are being penalized for being productive, she said, and instead of the government working with farmers, the EPA has come in and ignored the statewide measures to protect water sources.

U.S. Sen. Dan Coats, R-Ind., said it's clear the rule goes beyond reasonable environmental protection. Instead, the EPA ignored the public comments, many of which, he said, urged a different approach.

"They want to control every piece of water," Walorski said. "I'm not opposed to the EPA doing their job, but I'm opposed to them overstepping the state's authority."

Now, Indiana has joined about two dozen other states challenging the EPA's water rule in a lawsuit. Filed on June 30 in the federal court's Southern District of Georgia, the suit claims the rule violates the 10th Amendment, which states the federal government only possesses powers delegated to it by the Constitution. It is up to the federal court in Georgia to begin to schedule deadlines in the suit, and currently a timetable has not been announced.

"Once again, the Environmental Protection Agency has stretched beyond its authority under federal law, and they must be held accountable," Gov. Mike Pence said in a statement last week. "They cannot be allowed to continue to expand federal authority over more aspects of Hoosiers' lives."

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