Area farmers concerned over new clean-water rules

It's a given the Nothdurft family wants clean water for themselves and their farm.

However, with the Environmental Protection Agency and the U.S. Army Corps of Engineers implementing a new measure within the Clean Water Act, they are among many farmers concerned about changing the way they do things.

On May 27, the EPA and USACE unveiled a Clean Water Rule that will restore pollution protections for tens of millions of acres of wetlands and thousands of streams across the United States.

"Protection for many of the nation's streams and wetlands has been confusing, complex, and time-consuming as the result of Supreme Court decisions in 2001 and 2006. EPA and the Army are taking this action today to provide clarity on protections under the Clean Water Act after receiving requests for over a decade from members of congress, state and local officials, industry, agriculture, environmental groups, scientists and the public for a rule making," said Robert Daguillard of the EPA's media relations office, referencing a previous EPA news release.

The Clean Water Rule defines and protects tributaries that affect the health of downstream waters; provides certainty in how far safeguards extend to nearby waters; protects the nation's regional water treasures; maintains the status of waters within Municipal Separate Storm Sewer Systems; and reduces the use of case-specific analysis of waters.

The rule says a tributary must show physical features of flowing water, whether it's a bed, bank or ordinary high-water mark that will warrant protection. It also protects waters that are next to rivers and lakes, and their tributaries, as well as setting boundaries on covering nearby waters for the first time.

"The rule only protects waters that historically have been covered by the Clean Water Act. It does not interfere with or change private property rights, or address land use. It does not regulate most ditches or regulate groundwater, shallow subsurface flows or tile drains. It does not change policy on irrigation or water transfers. It does not apply to rills, gullies, or erosional features," Daguillard said.

In addition to working on her family farm, Laura Nothdurft is on the board of directors for the Cape Girardeau County Farm Bureau and is a former secondary agriculture education teacher, so she's familiar with the way farmers operate.

She said the Clean Water Act is not the main concern of farmers, but rather the rule modifying the Act.

"The way the EPA continues to try to interpret it is what is burdensome and frustrating," she wrote via email. "Twice, the Supreme Court has said that these rules exceeded congressional intent in the Act. Now, even Congress is getting involved, passing the Regulatory Integrity Protection Act of 2015 this month, which calls for the EPA and Corps to retract the rule. When we were able to visit Washington, D.C., in March, the feeling of burden from regulatory and presidential overreach was obvious.

"There was a lot of discussion from legislators about strategies to create more accountability for regulatory agencies like the EPA. Farmers are definitely not the only ones concerned with the aggressive authority our current administration is trying to claim."

While the Clean Water Rule only protects the types of waters that historically have been covered under the Clean Water Act, Nothdurft said it still could make farmers' lives more difficult.

"If a feature on a farmer's property is found to be a 'Water of the U.S.' or deemed 'jurisdictional,' they are prohibited from doing anything that causes pollutants (including dust) to get into that feature, except if a permit has been granted," Nothdurft said. "Changing any land or water features that they designate as a WOTUS would also be prohibited without a permit. There is no legal right to a Clean Water Act discharge permit; federal officials make that decision. Plus, anyone that's applied for permits knows how complicated and costly it can be, and then, we don't even know if we will be granted the permit to use our own land."

According to the EPA, a Clean Water Act permit is needed only if a water source is going to be polluted or destroyed. It does not regulate most ditches and does not regulate groundwater, shallow subsurface flows or tile drains. It does not make changes to current policies on irrigation or water transfers or apply to erosion in a field. The Clean Water Rule addresses the pollution and destruction of waterways -- not land use or private property rights.

Richard Oswald of the Missouri Farmers Union said like most farmers these days, he is suspicious of most things in which the government is involved, but he said he feels the new rules were inevitable.

"As our population grows and agriculture becomes more concentrated, it's natural to expect that we will be looked at much more closely, especially in a state where water tourism is as important as it is here in Missouri," he said. "In other states like Iowa, water treatment for some of their largest cities has become very expensive. And those municipalities are looking at agriculture as the culprit. That puts farms on the national radar of water quality.

"... And as we embrace more intensive agricultural operations, we have to expect to have what we do examined more closely. I think it's inevitable. In a way it's good for us because the excesses of a few could wreak havoc on all of us."

The rule of the Clean Water Act will go into effect 60 days after its finalization, which took place May 27.

"I'm sure there will be new revelations about the rule. It's bound to happen just as it has happened before in other government regulations," Oswald said. "It's important that farmers stay attuned to those so that when they come up, we can share what we've learned with everyone to help keep the situation manageable for all of us. As we have seen in the past, the cost to the country of having no rules would be much greater and much more dangerous. I think agriculture is up to the challenge."

smaue@semissourian.com

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