Restore historic protections to waters of the United States

Posted 11/16/12

One would expect that, living close to the land, farmers would embrace environmental conservation and stewardship. And while many farmers deserve praise for doing so, regrettably, this is not always …

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Restore historic protections to waters of the United States

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One would expect that, living close to the land, farmers would embrace environmental conservation and stewardship. And while many farmers deserve praise for doing so, regrettably, this is not always the case. One need only look at the controversy surrounding the Environmental Protection Agency’s (EPA) and the Army Corps of Engineers’ proposed rule to clarify what Waters of the United States they protect and do not protect as defined in the Clean Water Act (CWA) of 1972, and the act’s subsequent amendments. The proposal, which has come to be called the WOTUS rule, is in our opinion modest and balanced, yet critics, including powerful farming and ranching organizations, have engaged in wild exaggeration and have based their objections on a number of points that are just not true.

If you have any doubt about agriculture’s potential (and actual) impact on water quality, consider this: agricultural runoff (phosphorus and nitrogen found both in animal waste and used in chemical-based fertilizers) is considered a primary cause of this month’s toxic algae bloom (cyanobacteria) in Lake Erie. Concern about serious health consequences forced the shutdown of the drinking water system in Toledo, OH, located on Lake Erie. The bright green algae bloom was so large it could be seen from space. One look at this ought to make clear that it really is time for all farmers to get on board and accept as necessary commonsense rules to protect our waters.

Yet, industrial farms, the corporations that serve them and the organizations that speak for them (often called by the umbrella name, Big Ag) far too often use their muscle and lobbyists to stand in the way of environmental laws that were precisely written for Big Ag in the first place.

Pennsylvania offers a case in point where the proposed WOTUS rule is concerned. “Despite statements to the contrary, the changes suggested by EPA and the Corps of Engineers would expand their authority by allowing the agencies to regulate land activities around small creeks, streams and even ditches that only hold water during heavy rain events,” said PA Farm Bureau President Carl T. Shaffer in June. Rumors abound that farmers would need a permit for their cows to cross a stream or for farming activities in floodplains. (Both rumors are not true.)

Adding fuel to the fire, PA Sen. Pat Toomey, no farmer himself, denounced the WOTUS rule as a “terrifying power grab,” adding that its “new position seems to be that a puddle from your garden hose will ultimately end up in a navigable waterway.” In what is perhaps a sign of our times, the EPA felt the need to respond with the manifestly obvious statement, “Puddles are not regulated.”

At the national level, the American Farm Bureau Federation is leading the charge against the proposal with a campaign called Ditch the Rule (ditchtherule.fb.org/) in which it claims, “The EPA wants to regulate all water, everywhere” and would give the federal government “control over all farming and land use.”

These claims are so wildly exaggerated that the EPA has launched its own initiative to respond. Called Ditch the Myth (www2.epa.gov/uswaters/ditch-myth), it explains that “the proposal does not protect any waters that have not historically been covered under the Clean Water Act…, specifically reflects the more narrow reading of [EPA’s CWA] jurisdiction established by the Supreme Court and… protects fewer waters than prior to the Supreme Court cases.” In fact, the WOTUS rule reduces coverage of ditches and embraces an inclusive list of exemptions to address real-world agricultural practices (plowing, seeding, cultivation, minor drainage, ranching activities, irrigated areas and farm ponds). If a CWA permit was not needed for a particular practice before, no permit would be needed now. But you wouldn’t know any of this if you listen only to the rhetoric spouted by the proposed rule’s most vocal critics.

The truth is that dozens of state and local government bodies and elected officials, environmental and industry organizations requested clarification (www2.epa.gov/sites/production/files/2014-03/documents/wus_request_rulemaking.pdf) over what waters of the U.S. were covered by long-established environmental rules and programs following the two U.S. Supreme Court cases referenced above (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 2001, and Rapanos v. U.S., 2006).

The rule, as drafted, does not protect all waters (despite claims to the contrary), but only waters “with a demonstrated and significant impact on the condition of downstream water bodies.” It would protect wetlands adjacent to covered waterways, restoring protection that was lost more than 10 years ago to 20 million acres of wetlands.

The rule was drafted based on hundreds of scientific studies. It is supported by the National Farmers Union and is backed by countless conservationists, hunters, fishers, people of faith and many business leaders.

We believe that the proposed rule takes a moderate approach overall and that the modest three percent increase in waters protected is not a “power grab” but is necessary, based on the science we know now about waters and wetlands. We believe the agricultural exemptions offered are sufficient not to be over-burdensome to farmers.

In short, we support the WORUS rule as an essential tool for EPA and the Army Corps to do their job to keep our waters clean. It is time to reverse recent rollbacks to the Clean Water Act and restore historic protections. Finally, we ask farmers and all concerned citizens in the Upper Delaware River Region to support it, too.

When powerful special interests spread misinformation, it is critical that informed citizens speak up. The comment period for the public to weigh in on this matter has been extended to October 20.

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