E.P.A.’s Proposed Rules on Water Worry Farmers
By RON NIXON
MARCH 12, 2014
Dean Lemke is concerned that rules
the E.P.A. is set to issue may require him to begin getting permits for certain
types of work. Credit Jenn Ackerman for The New York Times
Water rarely flows in one of the
streambeds — it really seems to be little more than a small ditch — that Dean
Lemke points out to a visitor on his 800-acre farm in Dows, Iowa.
“I wouldn’t even call it a
stream,” he said. “There is only water flow in it when it rains.”
Mr. Lemke is a former Iowa state government
official who supervised water-quality programs. He is also a fifth-generation
farmer who grows corn and soybeans on his acreage, about 75 miles north of Des Moines, and he has
never worried that the government would be concerned about that small ditch.
But that may soon change.
The Environmental Protection Agency is set to issue regulations that
farmers like Mr. Lemke say may require them to get permits for work for which
they have long been exempt. The E.P.A. says the new rules are needed to clarify
which bodies of water it must oversee under the federal Clean Water Act, an
issue of jurisdiction that the agency says has been muddled by recent court
rulings. Opponents say the rules are a power grab that could stifle economic
growth and intrude on property owners’ rights.
There is no timetable for when the
rules will be released. But if the agency expands its jurisdiction over streams
like the one on Mr. Lemke’s farm, he
and other farmers say, the move could prove costly by requiring farmers to pay
fees for environmental assessments and to get permits just to till the soil
near gullies, ditches or dry streambeds where water only flows when it rains. A
permit is required for any activity, like farming or construction, that creates
a discharge into a body of water covered under the Clean Water Act or affects
the health of it, like filling in a wetland or blocking a stream.
The proposed regulations have also
raised concerns among industries beyond agriculture,
and objections have been filed by several groups.
To coordinate the opposition
efforts, those groups joined forces nearly three years ago with several
agriculture trade organizations, like the American Farm Bureau Federation, to
create the Waters Advocacy Coalition to lobby against increased environmental
regulation.
In a letter last month to the
White House and members of Congress, the coalition said the agency’s decision
to move forward on the new rules failed to comply with regulatory requirements
and relied on a flawed economic analysis concerning its effect on industry. The
coalition also said the scientific report the agency and the Army Corps of Engineers relied on to
justify the new rules had not been reviewed by other scientists.
Several members of Congress have
also weighed in. Representative Bill Shuster, a Pennsylvania Republican and
chairman of the Transportation and Infrastructure Committee, said in a March 6
letter to the White House and Gina McCarthy, the E.P.A. administrator, that the
new water regulations were part of a “pattern of an imperial presidency that
seeks to use brute force and executive action while ignoring Congress.”
Representative Lamar Smith, a
Texas Republican, said the regulations “could be the largest expansion of
E.P.A. regulatory authority ever.”
Conservation groups, which have
pushed for the regulations, say farmers’ concerns are overblown.
Jan Goldman-Carter, a lawyer who
works with the National Wildlife
Federation on water issues, said the proposals outlined regulatory
exemptions that have been in place for decades for plowing, planting,
harvesting and maintaining drainage ditches. She said a copy of the draft
regulations that was leaked last year clearly shows that to be the case.
“The draft guidance is clear that
irrigation ditches, drainage ponds and even groundwater are not considered
waters of the U.S.
Nor are gullies, rills, swales and other erosional features,” she said. “This
has been explained over and over again.” Industry claims that ditches or
groundwater might be covered under the new regulations are “just wrong,” she
said.
Mrs. Goldman-Carter said the draft
copy showed that the regulations would increase the E.P.A.’s jurisdiction over
streams by about 3 percent. That is hardly a power grab, she said.
Nancy Stoner, the E.P.A.’s acting
assistant administrator for water, said the agency had been working with the
agriculture industry to make sure its concerns about the proposed rules were
addressed. “Our goal is to clarify the types of waters that are covered by the
Clean Water Act, offer increased certainty to regulated entities, and keep in
place exemptions and exclusions for farming, ranching and forestry,” Ms. Stoner
said.
Don Parrish, senior director of
regulatory relations with the American Farm Bureau Federation, acknowledges
that the draft regulations do detail exemptions for agriculture. But he said
the E.P.A. and the Army Corps of Engineers have a lot of authority to interpret
the rules as they choose, despite reassurances from Tom Vilsack, the agriculture secretary, and agency officials that
farm work will not be curtailed.
Mr. Parrish said studies financed
by the American Farm Bureau Federation showed that the agency’s estimate of its
new jurisdiction was flawed because it was based on the current number of
landowners who are required to get permits to operate near streams and did not
examine those who might be affected in the future. “They can say farmers won’t
be impacted by this expansion of authority, but the truth is we just don’t
know,” he said. “And from what we have seen from the draft of the regulations,
it’s really hard to tell.”
That is what worries farmers like
Mr. Lemke.
He said there were dozens of
streams and ditches on his farm that carried water only certain times of the
year or when it rains, and it is not clear from the draft copy whether they
would be covered by the new regulations.
And, Mr. Lemke added, planting seasons
could be delayed while the agency goes through the lengthy process to decide if
a permit is needed to plow or plant near those usually dry water beds.
“Everything we do as farmers is based on timing,” he said. “If I have to go to
the E.P.A. to figure out if I need a permit because a ditch I’m planting next
to sometimes has water in it, that’s time I’m not planting. And if I’m not
planting, I’m not making money.”
National Wildlife Federation
Reality
Coalition is a partner with the National
Wildlife Federation, and the Natural
Resources Defense Council.
Note: Robert Redford
is a trustee at the Natural Resources
Defense Council, and was married to Lola
Van Wagenen.
Lola Van Wagenen
was married to Robert Redford, and is
a director at Shelburne Farms.
Susan
Crown was a trustee at the Natural
Resources Defense Council, is a member of the Commercial Club of Chicago,
and her father is Lester Crown.
Foundation
to Promote Open Society was a funder for the Natural Resources Defense Council, the Climate Reality Project, the Brookings Institution (think tank),
and the Aspen Institute (think tank).
George Soros
was the chairman for the Foundation to Promote Open Society, and is the
founder & chairman for the Open
Society Foundations.
Open
Society Foundations was a funder for the Natural Resources Defense Council, and the Atlantic Council of the United
States (think tank).
James Gustave
Speth is a trustee at the Natural
Resources Defense Council, and a director at the Climate Reality Project.
Carol M. Browner
was a director at the Climate Reality
Project, the energy czar for the Barack
Obama administration, and an administrator for the U.S. Environmental Protection Agency (EPA).
Sherwood L.
Boehlert is a director at the Climate
Reality Project, and was a trustee at the H. John Heinz III Center for Science, Economics and the Environment.
Larry J.
Schweiger is a director at the Climate
Reality Project, a trustee at the H.
John Heinz III Center for Science, Economics and the Environment, and the president
& CEO for the National Wildlife
Federation.
Alison M. Byers
is a director at the National Wildlife
Federation, and was, a trustee at the H.
John Heinz III Center for Science, Economics and the Environment.
Teresa Heinz
Kerry is the vice chair for the H.
John Heinz III Center for Science, Economics and the Environment, married
to the U.S. Department of State
secretary John F. Kerry, and an honorary
trustee at the Brookings Institution (think tank).
Thomas R.
Pickering is a distinguished fellow at the Brookings Institution (think
tank), a director at the Atlantic
Council of the United States
(think tank), and was a lifetime trustee at the Aspen Institute (think tank).
William
A. Nitze was a director at the Atlantic
Council of the United States
(think tank), an assistant administrator at the U.S. Environmental Protection Agency (EPA), and is a trustee at the
Aspen Institute (think tank).
Chuck
Hagel was the chairman for the Atlantic
Council of the United States
(think tank), and is the secretary at the U.S. Department of Defense for the Barack Obama administration.
U.S.
Army Corps of Engineers is a division of the U.S. Department of Defense.
Henry
Crown was a lieutenant colonel for the U.S.
Army Corps of Engineers, and his son is Lester Crown.
Lester Crown
is Susan Crown’s father, Henry Crown’s son, a member of the Commercial
Club of Chicago, his son is James S.
Crown, and was a lifetime trustee at the Aspen Institute (think tank).
James S.
Crown is Lester Crown’s son, a member
of the Commercial Club of Chicago, and a trustee at the Aspen
Institute (think tank).
Byron
D. Trott is a member of the Commercial Club of Chicago, and a friend
of Warren E. Buffett.
Bill
& Melinda Gates Foundation was a funder for the Aspen Institute
(think tank).
Warren E. Buffett
is a trustee & major donor for the Bill
& Melinda Gates Foundation, the chairman & CEO for Berkshire Hathaway Inc., and Walter Scott Jr is his friend from
childhood.
Walter
Scott Jr. is a director at Berkshire
Hathaway Inc., Warren E. Buffett’s friend
from childhood, part-owner for the farm
subsidies, and was a recipient of the farm
subsidies.
farm subsidies
is a U.S. Department of Agriculture
program.
Tom
Vilsack is the secretary at the U.S.
Department of Agriculture for the Barack
Obama administration.
David
H. Koch is a trustee at the Aspen Institute (think tank), and the EVP
for Koch Industries.
Alex A. Beehler
was the environmental and regulatory affairs director for Koch Industries, an assistant deputy for the U.S. Department of Defense, a special assistant for the U.S. Environmental Protection Agency (EPA),
and is a senior adviser at FaegreBD
Consulting.
FaegreBD
Consulting is the lobby firm for the Environmental
Defense Fund.
Stanley F.
Druckenmiller is a trustee at the Environmental
Defense Fund, the chairman & benefactor for the Harlem Children's Zone, and was a managing director for the Soros Fund Management.
George
Soros was a benefactor for the Harlem
Children's Zone, the chairman for the Foundation
to Promote Open Society, and is the founder of Soros Fund Management.
Foundation
to Promote Open Society was a funder for the Harlem Children's Zone, the Natural
Resources Defense Council, and the Climate
Reality Project.
Reality
Coalition is a partner with the Natural
Resources Defense Council, and the National
Wildlife Federation.
Susan
Crown was a trustee at the Natural
Resources Defense Council, is a member of the Commercial Club of Chicago,
and her father is Lester Crown.
James Gustave
Speth is a trustee at the Natural
Resources Defense Council, and a director at the Climate Reality Project.
Carol M. Browner
was a director at the Climate Reality
Project, the energy czar for the Barack
Obama administration, and an administrator for the U.S. Environmental Protection Agency (EPA).
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