Agriculture’s trust in the Environmental Protection Agency may 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 Nov. 14, skepticism has turned to cynicism for many producers and agriculture industry groups. Many American farmers argue the natural inclination of government is creeping overreach – best seen in the reshaping of the Clean Water Act.
The CWA passed in 1972 and was aimed at controlling 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 Corp of Engineers released a new rule proposal March 25, 2014, in a purported attempt to end confusion, but appear to have thrown more ambiguity on the legal pile.
EPA’s Long Reach
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 Corp of Engineers say it’s a harmless extension, but I think we don’t really know. In my opinion, more EPA jurisdiction could be dangerous for farmers because while there are protections in place for prior converted cropland and agricultural stormwater runoff, this new rule varies from what farmers typically associate when they think of EPA control.”
The new CWA rule fills three pages, but the accompanying preamble brings it to 88 total pages – a paperwork tangle that potentially will be parsed by lawyers for years to come. EPA’s rule expansion partly relies on “significant nexus,” a legal term holding major implications for U.S. 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.
Passport to Private Land
Significant nexus bypasses the need for a physical surface connection between bodies of water and allows for point-and-shoot regulation. Pared down, significant nexus affords EPA carte blanche access to water on agricultural land. Even taking into account EPA counter-arguments regarding improvements in clarification, compliance, and enforcement, the new rule proposal offers government regulators an access passport to private land holdings.
“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,” says Dillard.
EPA’s credibility in the eyes of U.S. farmers was severely diminished well before the CWA rule proposal, but the attempted expansion has galvanized agriculture and channeled general discontent with government regulation. “This administration, in terms of EPA, already has an abysmal relationship with the agricultural community,” says Dillard. “The CWA affair demonstrates how out of touch this EPA is with the U.S. agriculture industry. I’m not saying EPA put out the proposal to directly antagonize agriculture, but I think it shows the massive disconnect between EPA and agriculture.”
Zac Bradley, director of Public Policy, National Affairs, Arkansas Farm Bureau, echoes Dillard’s concerns over the rules proposal. “Farmers are concerned because the implications are endless. If the EPA claims jurisdiction over water on private land, then just about any farming or ranching practice would require additional permits. It would be another restriction telling farmers how their land could be used.”
The CWA rule proposal mirrors the original CWA in its ambiguity, and many farmers have adopted a “better the devil you know, than the devil you don’t” attitude. Ambiguity is often a cloak for stretched loopholes – a direct conduit to agenda-driven interpretation, and U.S. farmers recognize the connection.
“The EPA has told farmers, ‘This CWA expansion isn’t going to impact you.’ Well, the agriculture industry is asking, ‘If the EPA is making an innocuous rule, then why even make the rule?’ That’s a very fair question,” says Bradley. “You leave a loophole open long enough – and a critter will crawl in.”