A “harmless extension” has farmers concerned about government overreach
Agriculture’s trust in the Environmental Protection Agency (EPA) might have died the death of a thousand cuts. As a proposed rule change seeking to expand federal authority over “waters of the United States” heads toward comment closure Oct. 20, skepticism has turned to cynicism for producers and industry groups. Many farmers argue the natural inclination of government is to overreach, best seen in the reshaping of the Clean Water Act (CWA).
The CWA passed in 1972 to control the quality of surface water at the federal level. Yet, jurisdictional terms such as “navigable waters” and “waters of the United States” have served as a springboard for a host of court cases and confusion. In the name of clarity, EPA and the Army Corps of Engineers released a new rule proposal on March 25, 2014. In a purported attempt to end confusion, it appears they have thrown more ambiguity on the legal pile.
John Dillard, Farm Journal legal columnist, believes agricultural alarm is justified: “What we’ve seen in the EPA rule-making is partly a power-grab in terms of the agency trying to assert authority over more water than it ever has in the past. EPA and the Corps of Engineers say it’s a harmless extension, but we don’t really know.
“More EPA jurisdiction could be dangerous for farmers,” Dillard adds. “While there are protections in place for prior converted cropland and agricultural stormwater runoff, the new rule varies from what farmers typically think of as EPA control.”
EPA’s rule expansion partly relies on “significant nexus,” a legal term that holds major implications for farmers. Significant nexus (stemming from Rapanos v. United States, 2006) would allow EPA control over any water that might have an impact on another body of jurisdictional water. Essentially, if a farmer has a formational body of water on his land that EPA deems as a significant nexus, it falls under EPA regulation. No water spot on a farm would escape potential regulation: creek, pond, depression, irrigation ditch, riparian area or slough.
In simple terms, significant nexus affords EPA carte blanche over water on agricultural land. Even taking into account EPA counterarguments regarding improvements in clarification, compliance and enforcement, the rule proposal offers government regulators a passport to private land.
“EPA says the new rule is necessary because everything has been on a case-by-case interpretation since the Rapanos case, but the rule comes with quite a power-grab, and that’s why
everyone is seeing pushback in farm country,” Dillard says.
EPA’s credibility in the eyes of farmers was severely diminished well before the CWA rule proposal, but the attempted expansion has galvanized agriculture and channeled general discontent with government regulation.
“The CWA affair demonstrates how out of touch this EPA is with agriculture,” Dillard says. “I’m not saying EPA put out the proposal to directly antagonize agriculture, but it shows the massive disconnect between EPA and agriculture.”
Zac Bradley, director of public policy, national affairs for Arkansas Farm Bureau, echoes Dillard’s concerns over the rule proposal. “Farmers are concerned because the implications are endless. If EPA claims jurisdiction over water on private land, then just about any farming or ranching practice would require additional permits,” he says. “It would be another restriction telling farmers how to use their land.”
The rule proposal mirrors the original CWA in its ambiguity. Many farmers have adopted a “better the devil you know, than the devil you don’t” attitude. Ambiguity is often a direct conduit for agenda-driven interpretation, a connection farmers recognize.
“EPA has told farmers, ‘This CWA expansion isn’t going to impact you.’ Well, the agriculture industry is asking, ‘If EPA is making an innocuous rule, then why even make the rule?’ That’s a fair question,” Bradley says. “You leave a loophole open long enough and a critter will crawl in.”
How to Comment on the Proposed Rule Change
You have until Oct. 20 to comment on the proposed changes to the Clean Water Act. Go to http://www.regulations.gov (Docket No. EPA-HQ-OW-2011-0880) to record your comment.