Ag producers make waves over mud puddles
The U.S. government may regulate mud puddles on private land in the future. A “leaked” document from the Environmental Protection Agency (EPA) is making waves in the agricultural community. Changes in the Clean Water Act sent to the Office of Management and Budget for interagency review referenced wetlands which could interpret standing water -- puddles -- as “wetlands.” While agriculture is exempt in the proposal, there are concerns about more government permits and intervention regarding surface water rights.
“As it now stands, there are federal proposals that would allow jurisdiction over so-called waters that are not even wet,” American Farm Bureau Federation President Bob Stallman said during the Farm Bureau’s annual convention in mid-January. “That includes areas such as ditches that are dry for weeks and months on end. That represents little more than federal regulatory intrusion and would greatly hamper the ability of many farm families to put their land to productive use for food production.”
Eric Opiela, a fifth-generation Texan, rancher, and property-rights advocate, offered some insight.
“Our surface water resources are under attack from the federal government -- in just the last year under the guise of the Endangered Species Act, both federal courts and the U.S. Fish and Wildlife Service have proposed placing our river systems under federal control,” Opiela said.
In a Feb. 25 phone interview, Opiela addressed why the ag sector is concerned about the proposed rules.
What is ‘wet’?
Opiela explained that the term “wetlands” in the proposed rule is the source of ag concerns. See “Wetlands” for more.
If someone applies for assistance with the Natural Resources Conservation Service to build a terrace or has applied for a Farm Service Agency loan with the U.S. Department of Agriculture (USDA), wetlands documentation is required to complete the application.
If standing water -- after a good rain -- remains, the mud puddles could be deemed “wetlands” in the future. This could prevent a landowner from utilizing the land for agricultural production.
According to the USDA, the Natural Resources Conservation Service “has the ability to make wetland determinations based on landowners’ requests.”
While the ag sector is given exemptions in the proposed rules, it is not exempt when it comes to wetlands, Opiela said. The proposed rule is an attempt to redefine “waters of the United States,” including wetlands, Opiela said.
One challenge to a similar attempt was the Supreme Court case of Solid Waste Agency of Northern Cook County versus the U.S. Army Corps of Engineers in 2001. The court case rejected the EPA and the Corps of Engineers’ authority to regulate isolated waters based upon the potential presence of migratory birds under the Migratory Bird Rule. This case involved free-standing wetlands.
Now the government is attempting to redefine “waters of the United States” to include bodies of water that don’t drain into other bodies -- such as rivers. Wetlands, as determined by USDA personnel, now could be included under the Clean Water Act, Opiela explained.
Opiela said the proposed changes have a way to go. This involves a proposal, a comment period, and implementation of the rule. He foresees a lawsuit.
This is “a long process ... and the people need to be aware of this,” Opiela said.
If the USDA-designated wetlands would go under the Clean Water Act, the ag industry would find it difficult to farm, since filling or disturbing a wetland is prohibited.
Opiela discouraged allowing USDA personnel to make the determination, and the negative financial impact it would have on property values.
He said if standing water is found when government personnel visit a property, an “affirmative determination” might be filed, even if this water stands for only a few days.
“When half of our river flow is dedicated to preservation of endangered species, and construction of new surface water resources is halted due to the Endangered Species Act and the Clean Water Act, we have no option but to stand up on behalf of all Texans and fight these efforts,” Opiela said.
If approved, the government “would revise the existing definition of ‘waters of the United States’ consistent with the science and the Supreme Court cases,” according to the proposed rules.
Farm Bureau weighs in
Texas Farm Bureau President Kenneth Dierschke addressed this “draft” proposed rule when he spoke to the House Science, Space, and Technology Committee Feb. 5 in Washington, D.C.
“We believe the draft rule fails to comply with important regulator safeguards and is based on a scientific report that has not had sufficient peer review,” Dierschke said. “It is troubling that EPA’s ‘scientific’ report implies that, because nearly all water is in some way connected, EPA’s authority under the CWA [Clean Water Act] is virtually limitless. ... The impact of this broad interpretation, if rolled into federal regulation, will mean more permits, additional permit requirements, and government and environmental group scrutiny of the things we do in agriculture, and the threat of additional litigation against farmers and ranchers.”
Wetlands for regulatory purposes under the Clean Water Act are “those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.”
Wetlands are divided into three groups:
• “Marine wetlands occur in coastal shallows.
• “Tidal wetlands occur in coastal areas but inland from the oceans.
• “Non-tidal wetlands occur inland and are not subject to tidal floodplains.”
Sources: Environmental Protection Agency website; and USDA Natural Resources Conservation Service