OP-ED: Farmers take issue with EPA stance on waterways


Farmers across Pennsylvania were disappointed but not at all surprised by the final "Waters of the United States" (WOTUS) rule approved by the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps). The agencies not only failed to adequately address the concerns of agriculture in the final version, they actually broadened the scope of their regulatory stranglehold on land in the final rule when compared to the initial proposal.

Specifically, EPA and the Corps broadened the definition of regulated "tributaries" to include landscape features "characterized by the presence of physical indicators of a bed and banks and ordinary high water mark."

As long as water sometimes flows in a feature and eventually reaches navigable water, no matter how many miles downstream, the federal agencies are now asserting regulatory authority.

The new definition allows EPA and the Corps to define anything as a tributary, including dry land or ditches that are only wet during heavy rainfall, wetlands or historic wetlands.

But the agencies' expanded regulatory authority doesn't stop there; the new rule allows them to regulate land in instances where a water mark is not visible to the human eye. That's right ... our experts at the American Farm Bureau Federation tell us that EPA officials can sit in their offices using desktop tools to establish "invisible" tributaries on private lands, even though the human eye cannot see water or any physical evidence of water flow.

This power move by EPA and the Corps tramples over two U.S. Supreme Court decisions and the intent of Congress when it established the Clean Water Act, which limits the agencies power to regulate navigable waters, not dry land.

Meanwhile, claims made by the agencies that the rule does not regulate land are bogus. They simply refer to land as water.

Pennsylvania farmers are quite frankly offended by comments coming from top EPA officials, who say farmers are opposed to clean water efforts, because they oppose WOTUS.

This simplistic, one-dimensional thinking is not only untrue, but it hinders the opportunity to have real conversations about dealing with challenging issues.

Pennsylvania farmers are actively engaged in strong conservation efforts to improve water quality, reducing soil erosion and runoff from land through a wide variety of best management practices and no-till farming.

We don't appreciate the backhanded statements coming from EPA throughout the WOTUS comment period.

EPA has repeatedly stated that the rule change was needed to clarify confusion from two U.S. Supreme Court decisions in cases related to the Clean Water Act.

Unfortunately, the new rule does not provide more clarity for landowners. Instead it is more confusing and it makes it more difficult for landowners to determine if their farmland is a "Waters of the U.S." and if they need to obtain a federal permit.

By the way, getting a permit isn't as simply as paying a couple hundred dollars to put an extension on your garage. The permits typically costs thousands to tens of thousands of dollars.

Even after EPA and the Corps unveiled the final rule, they continued to tinker with it, making additional changes without public review or comment.

There is a huge mistrust of EPA in the agriculture community and among a vast majority of small, medium and large businesses as well as with local, county and state governments.

We are supporting two pieces of legislation (HR 1732, Regulatory Integrity Protection Act of 2015 and S 1140, Federal Water Quality Protection Act) calling for EPA and the Corps to withdraw the rule and start over by seeking input from state and local governments, small businesses and other stakeholders.

HR 1732 has already been passed by the House of Representatives, while S 1140 will be taken up soon by the U.S. Senate.

We had hoped that EPA would listen to "real" comments from people directly involved in the process, rather than promoting an orchestrated social media campaign through "Thunderclap" to solicit comments that reinforced exactly what the agencies wanted to do all along. The Senate Judiciary Committee is already looking into the ethics and legality of EPA's lobbying activities.

We are now turning to Congress to pass legislation to force EPA and the Corps to try again.

— Rick Ebert is president of the PA Farm Bureau.