Waters of the U.S.

Area farmers had a chance to attend a meeting on the proposed “waters of the U.S.” on Aug. 6 at the Pike County Farm Bureau in Pittsfield. 

It’s one of eight meetings throughout the state the Illinois Farm Bureau is hosting in August to help farmers have a better understanding of the new rule. The meetings will be moderated by Lauren Lurkins, IFB director of natural and environmental resources and Adam Nielson, IFB director of national legislation and policy development. An overview of the rule will be given as well as questions answered.

The rule seeks to define “waters of the U.S.” So far, farm bureau hasn’t been impressed with the definition.

Earlier they asked IFB members to call the White House Switchboard to urge President Obama to “ditch the rule” defining waters of the U.S.

So why is the IFB concerned? In a nutshell, they believe it will result in additional government involvement in land and water.

 “If the drains and ditches that cross between, among, and within farm fields and pastures are regulated as ‘navigable waters,’ the implications for farmers and ranchers will be disastrous,” Lurkins said. 

In a recent press release, the American Farm Bureau Federation said that waters and ditches would be regulated even if they are miles from the nearest ‘navigable’ waters.

“Under this proposed rule, farmers, ranchers and every other landowner across the countryside will face a tremendous new roadblock to ordinary land use activities. This is not just about the paperwork of getting a permit to farm, or even about having farming practices regulated. The fact is there is no legal right to a Clean Water Act permit – if farming or ranching activities need a permit, EPA or the Army Corps of Engineers can deny that permit. That’s why Clean Water Act jurisdiction over farmlands amounts to nothing less than federal veto power over a farmer’s ability to farm,” the release said.

It went on: “EPA accompanied its proposal with a new ‘interpretive rule’ claiming to clarify certain statutory exemptions for agricultural conservation practices, including activities as commonplace and essential to farming as building a fence. But these exemptions apply only to ‘dredge and fill’ permit requirements. They do not protect farmers from federal veto power over pest and weed control, fertilizer application, and other essential farming activities that may result in the addition of ‘pollutants’ to ‘navigable waters,’ – providing one views every ditch and wet spot across the landscape as ‘navigable waters.’”

Here is EPA’s position on the proposed ruling:

U.S. EPA and the U.S. Army Corps of Engineers have proposed a joint rule to clarify the types of waters that are and are not covered by the Clean Water Act to bring certainty and predictability, including to agriculture. For the past several years, EPA and the Army Corps have listened to important input from the agriculture community. Using the input from those discussions, the agencies then worked with the U.S. Department of Agriculture to ensure that concerns raised by farmers and the agricultural industry were addressed in the proposed rule.

The proposed rule focuses on reducing the confusion and complexity about where the Clean Water Act applies following Supreme Court decisions in 2001 and 2006. The proposed rule is consistent with the more narrow readings of Clean Water Act protection by the Supreme Court. Any normal farming activity that does not result in a point source discharge of pollutants into waters of the U.S. still does not require a permit.

The proposed rule preserves existing Clean Water Act exemptions and exclusions for agricultural activities. In addition, in coordination with USDA’s Natural Resource Conservation Service, EPA and the Army Corps will now exempt 56 established NRCS conservation practices implemented in accordance with published standards from Clean Water Act Section 404 dredged or fill permitting requirements if they occur in waters covered by the Clean Water Act.

The EPA says the proposed rule will preserve current agricultural exemptions for Clean Water Act permitting, including:

• Normal farming, silviculture, and ranching practices. Those activities include plowing, seeding, cultivating, minor drainage, and harvesting for production of food, fiber, and forest products. • Upland soil and water conservation practices. • Agricultural stormwater discharges. • Return flows from irrigated agriculture. • Construction and maintenance of farm or stock ponds or irrigation ditches on dry land. • Maintenance of drainage ditches. • Construction or maintenance of farm, forest, and temporary mining roads. • Provide greater clarity and certainty to farmers. • Avoid economic burden on agriculture. • Encourage the use of voluntary conservation practices. • Be consistent with and support existing USDA programs.

The proposed rule does not: 

• Cover groundwater • Cover tiles drains • Increase regulation of ditches • Protect any new types of waters • Affect areas generally previously excluded from jurisdiction, including: • Artificially irrigated areas that would revert to upland if irrigation stops. • Artificial lakes or ponds created by excavating and/or diking dry land and used for purposes such purposes as rice growing, stock watering or irrigation. • Artificial ornamental waters created for primarily aesthetic reasons. • Water-filled depressions created as a result of construction activity. • Pits excavated in upland for fill, sand, or gravel. • Prior converted cropland. • Waste treatment systems (including treatment ponds or lagoons).

Environmental Protection Agency (EPA) Administrator Gina McCarthy last week defended the agency’s proposed rule defining “waters of the U.S.,” calling some concerns “ludicrous.”

 “While there are some legitimate concerns out there with the rule … we’re hearing some concerns that really are, to put frankly, they’re ludicrous,” McCarthy said. 

Illinois Farm Bureau stands by its objections to the proposed rule.

“Our objections are based in fact and law, and the proposal constitutes an unreasonable increase in federal regulation over land and water, which is contrary to the intent of the Clean Water Act and Supreme Court cases,” Lurkins said.

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