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Jon Devine’s Blog

Do Farmers Want Dirty Water? Agribusiness and Some Members of Congress Seem to Think So.

Jon Devine

Posted July 16, 2012 in Curbing Pollution, Health and the Environment, U.S. Law and Policy

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Congress is in the process of considering the Farm Bill, a colossal piece of legislation that sets national agriculture policy.  But some members are apparently less interested in crafting a sensible bill, and instead are trying to take advantage of their colleagues' strong desire to pass a bill to sneak attacks on clean water into the law.  At the same time, Big Ag – also known as the American Farm Bureau Federation – has ramped up a PR campaign to support one of these dirty water rollbacks, and it is not letting the facts stand in the way of getting what it wants.  Along the way, I picked a fight with the Farm Bureau and learned a lesson about debate in the digital age.

The  Fight on Capitol Hill

In both the House and Senate, members have threatened to add a provision to the bill that would prevent the Environmental Protection Agency and the U.S. Army Corps of Engineers from completing their work on guidelines to clarify what types of waters are protected under the landmark Clean Water Act.  Because of irresponsible policy choices by the Bush administration, nearly two million miles of streams and tens of millions of wetland acres lack clear coverage by the pollution control requirements of the law.  The Obama administration has taken steps to fix that, but this amendment would kill this good-government initiative.  You can learn more about the administration’s work on this from our website and fact sheet, as well as from EPA’s site.  Be sure to check out EPA’s statement explaining that the numerous exemptions and special provisions for agriculture in the Clean Water Act and federal regulations are not touched by the guidelines, making the Farm Bureau’s attacks especially off-base.

So far, this dirty water amendment has not been included either in the bill that the Senate passed or the one recently approved by the House Agriculture Committee.  However, we need to be on the lookout for mischief if the full House takes up the bill and – if it passes the House – in conference with the Senate.  A story last week (subscription required) reports that Rep. Huelskamp (R-KS) intends to try to add the provision on the House floor.  You can help make sure those attacks don’t come by calling your Representative now and asking him or her to oppose any rollbacks of pollution control officials’ authority under the Clean Water Act.

The Fight on Facebook

One reason – in fact, my guess is that it’s the primary reason – that Congress is going bananas over the EPA/Corps guidelines is that the Farm Bureau has made it a priority to block the improvements.  And now they’re trying to enlist wider support by launching a Facebook page and starting a Twitter feed condemning the EPA/Corps initiative. 

These social media forays are remarkable examples of how much some industry lobbyists are willing to mislead the public about environmental policies.  In particular, the Facebook page has various statements about the guidelines that – if they were accurate – would make any reasonable person question the wisdom of the agencies’ action, such as: “the American Farm Bureau Federation is leading the way to stop EPA and the Corps from literally regulating every drop of water on private landowners’ property.”  Think about that: if we took the Farm Bureau "literally," as it invites, it apparently would have you believe that EPA and the Corps want to regulate your icemaker, your kids' fishbowl, or the sweat on your brow.  Even if you take the Farm Bureau figuratively, the guidance's numerous limitations (some of which we believe go too far and leave some waters unprotected), combined with existing limits on what the law covers, belie the Farm Bureau claim.

Because of utterly untrue statements such as that, plus other sweeping generalizations that mislead readers, I got ticked off enough to post a comment on the new Facebook page, taking the Farm Bureau to task for a handful of claims.  My hope was that anybody coming to the site would see that there is another – less hysterical – side to the issue.  I was pleased to see that someone running the campaign then quickly responded, though I’m afraid it was only to add more hyperbole.  Undeterred, on Monday, I replied, point-by-point, to their response. 

The reason I’m giving you this history, rather than just steering you to the debate online, is that it has since vanished.  After I posted my replies Monday, the entire conversation between me and my debate partner was taken down that night or the next morning.  Also on Monday, a note was posted on the site, reading: “The purpose of this Facebook page is to provide information that supports the grassroots position on this issue as approved by Farm Bureau members from across the nation. Posts that are determined to not be in that spirit may be removed by the administrators of this page.”

So, dissent is apparently unwelcome over at Farm Bureau HQ. 

Fortunately, at least for those of you who want to understand more about this policy issue and whether claims about it hold up to scrutiny, I took good notes.  Reproduced below (sorry for the length!) are my original comment on the site and its contents, the posted response to me, and my replies.  Please note that, because it has been taken down, both sets of my comments below might differ slightly from the final, posted, version – what you see below are my drafts, augmented by my memory of how I tweaked them before posting.  The response to me, however, is verbatim – by dumb luck, I had copied that from the page before it was removed.

I invite the Farm Bureau to continue this debate here on Switchboard.  I won’t edit or remove their comments, and I will respond as promptly as I am able.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

My Facebook Exchange with the Farm Bureau

Original JD comment:

This site has so many misstatements that I hope it is a parody.  Let's discuss a few.  First, with respect to the claim that it changes regulations, the document (the draft of which is available at http://1.usa.gov/lmvVbi for people interested in the actual document rather than a caricature of it) says on page 1 that "it is not a rule, and hence it is not binding and lacks the force of law."  Second, did you know that the Bush administration twice used the same "regulatory sleight of hand" to explain how the Clean Water Act treats certain water bodies?  It's true -- see http://1.usa.gov/LgCxGL.  Third, nobody seriously questions that the Clean Water Act protects small or otherwise non-"navigable" streams from pollution.  As any elementary school child can tell you, water moves from small streams to big rivers, and these guidelines will reaffirm what's been true in some fashion for over 100 years -- tributaries are protected from pollution by federal law.  Fourth, the numerous exemptions and special provisions for agriculture in the Clean Water Act and federal regulations are not touched by these guidelines -- see http://1.usa.gov/N5cQ9L.  Fifth, rather than being a sneaky backroom plan, EPA and the Army Corps of Engineers put out the draft guidelines for months of public comment (during which over 230,000 comments were submitted, the vast majority positive).  Sixth, while it's certainly true that the House of Representatives has launched several attacks on the Clean Water Act over the last couple years, none of them has passed the Senate, much less been signed by the President. So, they're not the law, unlike the Clean Water Act itself.

FB response:

Mr. Devine, our campaign to stop EPA’s so-called “guidance” is actually spot on, despite your efforts to belittle it. We have thought about this long and hard as our farmers and ranchers have been dealing with efforts to regulate every drop... of water and dry land for decades.

(1) Many federal agencies have attempted to disguise a regulation as a “guidance” in order to skirt the legal requirements for rulemaking. Just because EPA says this is merely non-binding guidance does not make it so, particularly when the draft you cite explicitly claims that EPA intends to expand federal jurisdiction. While we differ obviously in our evaluation of the substance of the “guidance,” it is the substance, not the label, that matters.

 (2) As for the Bush administration guidance, we find it odd that you blame that on us. Your organization (if this indeed NRDC attorney John P. Divine) and Ducks Unlimited worked very hard to stop the regulation the Bush administration wanted to propose, most likely because you did not like it. The American Farm Bureau Federation is on the record as supporting rulemaking over guidance on this issue since the Supreme Court first issued the SWANCC decision.

 (3) Mr. Devine, we do not object to protecting small streams. And yes, we do hope that our nation’s children are capable of understanding which direction the water flows. What we do object to is regulating dry land and washes and ditches that do not carry water except for a couple days a year after a heavy rain. I suspect that if you asked a child whether or not a dry gully in the middle of New Mexico is a stream, they would say “no.”   

(4) Ah, proponents of the guidance and federal expansion of the Clean Water Act (CWA) love to cite to the ag exemptions. However, Mr. Devine, if you were to link the numerous “guidance” documents and regulations that further interpret the ag exemptions, you would see that EPA and the Corps have gutted them almost completely. Once every low spot in a farmer’s field becomes a “water of the U.S.” by virtue of the guidance, landowners will be in constant conflict with the federal government. If the federal government issues enough guidance documents, it can gut a rule and certainly gut congressional intent and statutory language. That has already happened with the ag exemptions, and we believe the “Guidance” would now do so for the rest of the regulated community.

 (5) Yes, Mr. Devine, the “Guidance” was put out for public comment, and farmers and ranchers commented too. And yes, we are sure your organization and others sent in tens of thousands of support cards. But, since EPA claims this is only a “Guidance,” it is under no obligation to substantively respond to negative comments and defend its actions. Importantly, EPA has engaged in only a sham of a short-cut economic analysis that does not even come close to what would be required under the Administrative Procedures Act. The lack of economic analysis for the other CWA regulatory programs is striking. A proper look at the costs associated with National Pollutant Discharge Elimination System (NPDES) permits that apply to certain livestock farms and pesticide applications; Spill Prevention, Control, and Countermeasure (SPCC) plans; Total Maximum Daily Loads; and water quality standards would show the public just how unbelievably expensive this Guidance really will be and how it will reach into almost all economic activity in this nation. And, it would show how little environmental benefit would be gained for such a cost.

 (6) As for Congress, this guidance accomplishes what legislation to delete navigable was intended to do - it is a significant expansion of the regulatory footprint of the federal government.

JD reply:

Cool – a debate!  (1) I couldn’t agree more – the substance is what matters.  And here’s the substance – today, certain kinds of water bodies that had been protected from pollution and destruction for decades are either not being protected at all or are subject to a time- and resource-intensive process to establish they are protected.  The consequence is that hundreds of Clean Water Act violations have been effectively ignored by law enforcement, due to difficulties in enforcing the law.  These difficulties arise not because of the Supreme Court or the Act; rather, the only actual decision of the Court is a very narrow one (the presence of migratory birds alone does not establish that the Act applies), and the law itself broadly covers “the waters of the United States.”  So, returning to proper enforcement of the law is mostly limited by the existing Bush administration policy guidance, which the Army Corps and EPA are trying to correct.

(2) Guilty as charged, though my name is Jon Devine.  And you’re darned right we worked to stop a rollback of the Clean Water Act.  Just like we did when we won the first case holding that the Act applies broadly, without being limited to navigable waters, just like we’re doing today when we work to restore protections to waters that have been improperly denied coverage under the law’s pollution control programs, and just like we will do until protections are permanently secured in agency regulations and, ideally, in statute.

(3) Well, that’s a start (though it’s one hard to square with the Farm Bureau’s position in its Supreme Court brief: http://www.appellate.net/briefs/Rapanos_Amicus.pdf).  If you now accept that the Clean Water Act protects non-navigable tributaries, then I presume that your beef is with which tributaries (to say nothing of other waters) the agencies believe the Court’s opinions allow them to protect.  On that score, given that the agencies’ draft guidance excludes “gullies” from being considered tributaries, despite your suggestion to the contrary, and would treat an aquatic feature as a tributary only if it had a bed and banks and an ordinary high water mark (and would impose additional – in our view unnecessarily limiting – constraints on so-called “ditches”), I’m pretty confident that my kids could identify a tributary when they saw one, and I wonder why you’d make it permissible under the Clean Water Act to pollute even a single water meeting that description.

(4) If the exemptions were truly gutted and the agencies’ thirst for more regulatory power is as unquenchable as you suggest, then you would expect that millions of farmers would be seeking Clean Water Act permits to be safe today, and you would expect that millions more farmers would already have such permits dating back to the days before the Supreme Court decisions and the Bush administration policy guidance.  Where are those?  Perhaps these exemptions are more effective than you let on, or perhaps the notion of the federal government regulating “every low spot in a farmer’s field” is as overblown and meant to scare farmers as suggestions that EPA is using drones to spy on farmers, is planning on regulating farm dust, and is trying to control milk spills like oil spills (all of which, sadly, the agency has had to debunk in the last few years).

(5) The reason THE PUBLIC weighed in strongly in support of these proposed clean water policies is that people really want and really value clean water. Poll after poll, including on this issue specifically, shows that Americans want policies that keep surface waters and drinking water supplies clean (like the headwater and intermittent/ephemeral streams that help supply water to drinking water systems serving over 117 million Americans). I’d put the value that the public puts on clean water up against the cost to dischargers of consulting with pollution control experts and limiting the impact of their discharge before dumping into or destroying a water body any day of the week.

(6) That is false.  For one, the legislation called the Clean Water Restoration Act was designed to return Clean Water Act authority to cover waters that had been covered prior to the Supreme Court’s 2001 decision.  Former EPA administrators of both parties endorsed the bill, as did countless other leaders and organizations.  And when the Senate Environment and Public Works Committee considered a version of the bill that restored protections to waters covered prior to the Supreme Court’s interventions, the National Farmers Union praised that compromise, saying it would “restore the original intent of the CWA, minimize costly litigation and expedite the permitting process for agricultural producers.”  But of course that was legislation – administrative action can’t change the law to fix the Supreme Court’s misinterpretation of the law like a statute can; unsurprisingly, the draft guidance is less protective than the bill would have been.  The administration has acknowledged this explicitly – in a letter from several top-ranking officials (including USDA Secretary Vilsack) that “existing guidance documents and supporting regulations can be revised to implement [the administration’s clean water] principles to only a limited degree. . . .” So, what’s really going on here is that the pre-2001 protections will not be fully restored by the guidance, but the guidance will allow for the protection of some resources that the Bush administration’s guidance made it hard or effectively impossible to cover.

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Comments

farmer joeJul 17 2012 01:24 PM

It is amazing how much you take for granted. If you expect farmers and ranchers to risk their very livelihood because you 'think' you know what a guidance document means, and what you 'think' this administration will do with it, you sorely lack the ability to put yourself in the shoes of the ones whose livelihoods depend on a very narrow profit margin. I'm left to assume you wouldn't mind specific language in the guidance document, or statute, or rule, to exempt ridiculous items like low areas in a farmer's field, etc. that are left to chance currently. You seem to believe a farmer or rancher should just 'trust' you and the administration to do the 'right' thing. History, especially recent, has proved otherwise. It only makes sense to make sure an industry is protected, and that common sense is applied. I'm with the Farm Bureau on this one.

ad farmJul 17 2012 04:42 PM

We (farmers and ranchers) drink the same water that every one else does. Of course we don't want it polluted! We (farmers) use way less chemicals and fertilizers than years past. These practices greatly reduce the runoff pollution that has been experienced.
You bring up trusting the Corps. How can we trust them after their great debacle in the Missouri River basin last year? Mismanagment of the Dams cost all of us taxpayers millions in damages, along with polluting the river with tons of sediment!
I respect the EPA, they have a very worthy cause. But they keep thinking they need more power! Seems as if the power they have will never be enough. Appearantly they have never gone hungry!
Meanwhile, when municipalites have an emergency, they can dump raw sewage into waters if necessary. If a farmer did that, they would be out of business.

Jon DevineJul 17 2012 11:27 PM

Thank you both for reading and taking the time to comment. Even if you're not inclined to believe me or the public servants who enforce the Clean Water Act, my point in this post is that the Farm Bureau's overheated, misleading rhetoric doesn't serve farmers well.

The good news is that you don't need to take my word for these things -- the post above provides links to the actual materials in question (unlike the Farm Bureau's response, you might note). For more specifics on the various ways that the Act and the regulations treat agriculture more leniently than other discharges, you can read: (1) section 404(f) of the Act (http://water.epa.gov/lawsregs/guidance/wetlands/sec404.cfm), which provides exemptions from the "dredge or fill" permit program certain discharges from a wide variety of common farm activities, including those from "normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices"; (2) the definition of regulated "point source" in section 502(14) of the Act (http://water.epa.gov/lawsregs/guidance/wetlands/sec502.cfm), which excludes “agricultural stormwater discharges and return flows from irrigated agriculture”; and (3) the regulatory provision in 40 CFR 230.3(s) (http://cfr.vlex.com/vid/230-3-definitions-19816974), which excludes "prior converted cropland" from being considered a regulated water.

Once you take account of these and several other limitations (such as the definition of "wetland" that -- contrary to the Farm Bureau's suggestions -- does not require the regulation of any "low spot" in the land), what's left are important aquatic resources that deserve the protections of the Clean Water Act.

Comments are closed for this post.

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