Annie Snider, E&E reporter
Greenwire: April 17, 2014
Today, farmers and ranchers can freely do any number of things on their property affecting rivers, creeks and wetlands that no other sector could undertake without going to the federal government for permission.
Agriculture is different, Congress decided when passing the 1972 Clean Water Act. For the most part, the people who grow the country’s food can plow their fields, build roads, spread fertilizer and drain water off their crops without needing a permit for filling in wetlands or washing pollutants into streams.
And under a major regulatory proposal being pushed by U.S. EPA and the Army Corps of Engineers that has drawn a harsh backlash from some of the country’s most powerful farm groups, none of this would change.
“We know how vital water is to America’s farmers and ranchers,” EPA Administrator Gina McCarthy said when unveiling the rule last month. “Some in the agricultural community think that a new rule might mean an expansion of the Clean Water Act to all waters. But as I’ve explained, that’s simply not the case.”
In fact, the regulation, which would place nearly every stream and the wetlands near it under federal jurisdiction, doesn’t just keep long-standing agricultural exemptions. It also includes new exemptions for conservation practices and clarifies that certain areas wouldn’t be covered, including tile drainage — an issue of major confusion for farmers (Greenwire, April 4).
But the agencies’ efforts at outreach haven’t convinced opponents, who say there is plenty of reason for farmers to be worried. The nation’s major farm groups have come out strongly against the proposal; the American Farm Bureau Federation has said it will “dedicate itself to opposing” the rule.
Some of the opposition appears to be rooted in a philosophical skepticism about federal regulation. EPA has not always helped itself on this front. The agency’s release last year of hundreds of pages of spreadsheets containing personal information of livestock operators in 29 states to environmental groups as part of a Freedom of Information Act request sparked a massive outcry from agricultural groups and their allies in Congress (Greenwire, May 3, 2013).
But the driving concerns related to the proposal appear to be less about what federal regulators are proposing now than what both farmers and environmentalists expect could come next.
Could ditches be covered?
More than half of the nation’s waters are rated by EPA as being in “poor condition.” And the lion’s share of that pollution is washing off farm fields, suburban lawns and city streets — nonpoint sources that federal regulators do not have the power to regulate under the Clean Water Act (E&ENews PM, March 26, 2013).
Pollution from nonpoint sources tends to be closely tied to when and how much it rains, which makes it trickier to control than pollution from a power plant or wastewater treatment facility that ultimately comes out of a pipe. Hence their exemption.
“If you ever heard EPA talk, they say, ‘We’ve addressed the point sources, we’ve addressed the point sources because they have their permits,'” said Don Parrish, senior director of regulatory relations at the American Farm Bureau Federation. “The big kahuna out there is nonpoint source, and nonpoint source is land use.”
The scale and persistence of the country’s water pollution problem means that regulators will have to look harder at the agriculture sector, said Patrick Parenteau, a professor at Vermont Law School with an extensive background with the Clean Water Act who also spent time as the commissioner of the Vermont Department of Environmental Conservation.
“They should be worried, they should be doing something about it,” Parenteau said of the agricultural sector. “But it’s not the jurisdictional rule — that’s not where the impetus is coming from. The problem is that waters aren’t meeting standards.”
One of the main areas of concern for agricultural groups opposing the proposed rule is what it would mean for ditches that are used to drain stormwater — often laced with nutrient pollution — off fields or to shuttle irrigation water to them.
EPA has said its proposal will not increase regulation of ditches.
In fact, the proposal would codify a more forgiving version of the agencies’ existing approach to ditches. Currently, all ditches are covered — even those that don’t have a perennial flow — except those carved exclusively out of dry lands. The proposal would keep the exemption for ditches carved out of dry land and add a perennial flow requirement for a ditch to be covered.
Under the rule proposal, those covered ditches would be considered to be just like any other tributary. That means they would not only be subject to the Clean Water Act’s permitting requirements, but they would also be subject to other requirements of the law, including water quality standards, pollution cleanup plans and oil spill prevention measures.
However, there is a major caveat: Agricultural runoff is exempt from pollution discharge requirements under the Clean Water Act, meaning that ditches that collect just water running off farm fields generally do not require permits.
There is some question, though, as to whether a ditch that collects agricultural runoff could end up needing a pollution discharge permit for where it flows into a larger water.
The specifics remain in flux, and there are plenty of questions about whether cash-strapped federal agencies would actually regulate some of these smaller sources, even if they were to technically have authority over them. But for farmers and ranchers, this adds up to the uncomfortable possibility that the ditches and streams running through their property could receive closer scrutiny if the rivers and lakes downstream from them rank as polluted.
‘Nothing less than federal veto power’
In fact, many people think EPA will take a stronger hand with agriculture in the future.
Their evidence: what the agency is doing in the Chesapeake Bay.
Thirty years of efforts to clean up the sprawling, 64,000-square-mile watershed had failed, and in 2010, as part of a legal settlement, the agency agreed to use its authorities to undertake a landmark approach to cleaning up the bay.
Under the plan, EPA is working with states to set Total Maximum Daily Loads (TMDLs) for rivers, lakes and wetlands with an eye to the overall health of the bay. Traditionally, EPA has limited authority to ensure that the states actually make the reductions called for by these pollution diets. But in the bay cleanup plan, EPA is using what it does have — such as the right to approve or disapprove pollution discharge permits and to award grants to states — in order to push states and localities into following through with the diets.
Agricultural groups strongly opposed the bay cleanup plan, arguing that it federalizes what should be local land-use decisions and threatens to drive agriculture off the landscape. Led by the Farm Bureau, they joined with other industry groups to challenge the plan in federal court. The court last year upheld the plan, and now the groups are appealing that decision (E&ENews PM, Oct. 8, 2013).
Now, the Farm Bureau is raising similar concerns about the proposal on Clean Water Act jurisdiction, contending that the proposal would lead to EPA gaining the authority to make decisions that affect the very viability of farming and ranching.
“This is not just about the paperwork of getting a permit to farm, or even about having farming practices regulated,” said Bob Stallman, the group’s president. “The fact is there is no legal right to a Clean Water Act permit — if farming or ranching activities need a permit, EPA or the Army Corps of Engineers can deny that permit. That’s why Clean Water Act jurisdiction over farmlands amounts to nothing less than federal veto power over a farmer’s ability to farm.”
And it may not just be up to EPA, opponents say. The Clean Water Act gives citizens groups unique rights to challenge activities affecting water. So even if EPA, with its declining budget and dwindling staff, chooses not to regulate something, a citizens group could force it to. Indeed, environmental regulation today has been shaped by many such lawsuits.
Effects on legal cases
One of the areas where farmers most frequently need permits today is for concentrated animal feeding operations (CAFOs), although the overall numbers are small. According to EPA, less than 10 percent of all animal feeding operations are large enough to qualify as CAFOs, thus making them subject to pollution discharge permits. And of those CAFOs, 8,000 — fewer than half — actually have federal pollution discharge permits.
Environmentalists have long been suspicious about why more CAFOs don’t have permits. William Eubanks, a partner at the public interest law firm Meyer Glitzenstein & Crystal who has represented environmental groups in suits against CAFOs, said there are only two reasons why a CAFO wouldn’t need a pollution discharge permit.
“Either they aren’t discharging into a water of the U.S., or they are and they should have a permit and they are in violation of the act,” he said.
Eubanks said it is difficult for the public to know how many CAFOs might be discharging into a water that would become clearly jurisdictional under the EPA proposal. But, he said, environmental groups have forgone lawsuits against CAFOs in the past because there were questions about jurisdiction.
“What we usually evaluate for a client is [that] we’re looking at a CAFO that doesn’t have a permit but we are confident that they are discharging into a waters of the U.S.,” Eubanks said. “We don’t want to be having a big battle over that.”
Clarifying which streams and creeks fall under federal jurisdiction doesn’t just make things clearer for regulated industries — it also makes things clearer for groups that want to challenge an activity and for a judge faced with deciding whether a permit was needed.
Pamela Vesilind, a professor at the University of Arkansas School of Law, said the regulatory proposal could take away one of the key arguments used by property owners in court. They have for years been fighting enforcement actions with factual arguments, she said, contending that the area in question is not a stream or wetland under the Clean Water Act.
“Courts have been left in the unfortunate position of having to make sense of hydrologic and geologic data to determine whether the facts in a case match Congress’s intent in establishing the regulatory permitting programs,” she said by email. “If the proposed rule is finalized, it will mostly foreclose this type of argument.”
‘Smart political strategy’
Then there’s the politics.
Jim Oberstar, the former Democratic chairman of the House Transportation and Infrastructure Committee, led legislative attempts to amend the Clean Water Act in a way similar to what the Obama administration is now proposing as regulation. He argued that his legislation and the current regulatory proposal would “clearly be a benefit to farmers,” but, he said, in pressing this approach on Capitol Hill he often ran into “irrationality.”
“When you run up against blind, unreasoned opposition to a manifestly reasonable proposal, then you have to believe there is something other than policy driving them, or the welfare of their members — but rather, some national agenda,” he said in an interview.
Oberstar, who lost his Minnesota seat in 2010 to tea party Republican Chip Cravaack by a margin of 4,407 votes, said some groups may be using the regulatory proposal as a wedge issue with Democrats.
Although other sectors of the economy may see a greater economic impact under the rule, Parenteau, the Vermont Law School professor, argued that agriculture has been the loudest voice in the coalition opposing it because farmers present a more sympathetic case.
“I’ve seen this play before, and putting the face of the farmers on it is a smart political strategy,” Parenteau said. “They’re not the real ones at risk — it’s the homebuilders, it’s the miners to an extent — but they want to put the yeoman farmer out there as the face of it. They’ll split the Democratic Party, that’s their political strategy.”
Parrish of the Farm Bureau objected to that line of reasoning, saying he has taken the lead in the industry coalition opposing the regulation because he has the strongest expertise on the topic.
“I think we’re all kind of in agreement that this has such a broad impact on anybody that operates on a landscape that there’s probably more commonality than difference,” he said of the industries in the Waters Advocacy Coalition.
But while the Obama administration’s proposal has some powerful agricultural critics, not all farmers are opposed to it.
The National Farmers Union has come out in favor of the administration’s proposal, saying it provides much-needed clarity for farmers. Others, including American Farmland Trust, are still reviewing it.
And on the ground, some farmers say the proposal just makes sense.
Richard Kaup, who owns a ranch in north-central Kansas that his family has worked for five generations, said the argument pushed by conservatives to limit Clean Water Act jurisdiction to only truly navigable waters has never added up.
“It’s never made sense to me that the Clean Water Act would only apply to navigable rivers or bodies of water because in Kansas there aren’t that many navigable streams, and yet there’s the whole state and all of the agricultural activities that rely on the abundance of water,” he said. “Water’s really a precious commodity for us out there, and we’re really sensitive to making sure that water is protected, not just for us but also for the people downstream.”
Kaup, who is involved with a small group of Western farmers and ranchers that advocates for clean air and water policies, acknowledges that he is probably more environmentally inclined than others in his area. But, he said, there’s also self-interest at play.
His property, which runs along Troublesome Creek, is in the headwaters of the watershed. Downstream from him is the intake for the rural water line that provides water to the town and to farmers.
“The rural water system draws from the river farther downstream that our small creek feeds into,” he said. “That water has to remain pure for its use by people and livestock in the area. So, it’s kind of a loop.”
Reporter Amanda Peterka contributed.