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Phony Objections to Clean Water Protection Rule: Myths and Facts about Agriculture and the Proposal

Jon Devine

Posted May 6, 2014 in Curbing Pollution, Health and the Environment, U.S. Law and Policy

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Spoiler alert: this post is going to spend a fair amount of time and electrons on an issue that, at the end of the day, is a nothingburger.  Specifically, I'm going to explain here how agriculture will be affected by a new proposed rule from EPA and the Army Corps of Engineers to protect streams, wetlands, and other water bodies under the Clean Water Act.  The short answer -- there's nothing to see here, and the industrial opponents’ claims to the contrary are either mistaken or disingenuous.

Thumbnail image for 111_rp_mn_8_oberstar_james.jpgBefore I get into this post, however, I wanted to pause to note that former Minnesota Congressman James Oberstar passed away on May 3 and reflect on his enormous contributions to the Clean Water Act, including his tireless efforts to restore protections to vulnerable streams and wetlands.  Congressman Oberstar knew the Clean Water Act – he often spoke about his role in its creation, as a Congressional aide working with Congressman John Blatnik on the Committee on Public Works (whom he ultimately succeeded in Congress and in leading the committee that oversaw the Act).  In recent years, he led the charge in the House, along with leaders like Congressmen Sherwood Boehlert and John Dingell, to ensure that the Act protected all of the nation’s waters from uncontrolled pollution.  On top of his commitment to this vital subject, Congressman Oberstar was a delightful and generous man – my colleagues and I were lucky enough to meet him several times, and he never failed to thank us for working to protect clean water, even though he did more to ensure that Americans had access to clean, safe water than I could ever hope to do.  He was a great public servant and a good man – he’ll be missed.

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Now, back to your regularly-scheduled program – the Clean Water Protection Rule.

First, a reminder of what the proposed rule would do.  

(1)    The proposal marginally increases the percentage of waters nationwide likely to be protected by the various pollution control programs of the Clean Water Act (the agencies estimate it'll bring in approximately three percent more water bodies), though that’ll still be less inclusive than Reagan-era policies.  Yes, you read that last part correctly – under President Reagan, the law was applied to any water body that could serve as habitat for migrating birds; as the independent Government Accountability Office (then called the General Accounting Office) found in 2004, under that policy, “the Corps was able to regulate almost any body of water or wetland.”  This rule would not reinstate that policy, but instead would only protect waters with a demonstrated and significant impact on the physical, chemical, and biological condition of downstream water bodies.

(2)    The rule would enormously improve clarity about what waters are in and what ones are out, making regular implementation and enforcement of the law far more efficient and predictable.  In particular, the agencies propose to protect, as a class, tributaries to navigable and interstate waters, as well as wetlands and other waters (like oxbow lakes) adjacent to covered waterways.  The proposal then seeks public input on how best to treat water bodies that aren’t clearly part of the tributary network, like the “prairie pothole” wetlands of the Great Plains that my friends at Ducks Unlimited call the nation’s “Duck Factory.”  The agencies achieve improved clarity in the proposal by defining terms like “tributary” and “adjacent,” and by including explicit regulatory language stating that groundwater and tile drains are both not considered covered water bodies.

(3)    The agencies’ initiative leaves unchanged existing regulatory exemptions from the law, codifies a number of exemptions that had previously only been followed as a matter of agency policy, and specifically excludes a category of ditches (upland ditches without perennial flow) from coverage.

(4)    Simultaneously with this proposal, EPA and the Corps declared that 56 different agricultural/conservation practices qualify as “normal farming,” making them generally exempt from Corps’ permitting.  They also made these exemptions immediately effective.

Because the proposal would restore protections to streams and wetlands that help prevent flooding, filter pollution, supply drinking water to millions of Americans, and provide critical fish and wildlife habitat, a wide variety of people and citizen groups have praised EPA and the Corps for moving forward and putting it out for public comment.  These supporters include the National Farmers Union and the Center for Rural Affairs, along with many individual farmers.  And there’s a lot more; we’ve been keeping track of, and will periodically post summaries of, this broad support here on Switchboard – please check back for those pieces.

Myths and Facts about the Clean Water Protection Rule

Despite the proposal’s popularity and its clearly moderate approach, some industry groups and their friends in Congress are acting as though it is a huge expansion of federal protections.  My favorite such claim is Congressman Hal Rogers's statement that the rule represents “the biggest land grab in the history of the world,” bigger apparently than the various seizures of vast areas during several centuries of world colonization.  Such a claim is so over the top that one can’t begin to take it seriously, but the more common attacks on the proposed rule are more pernicious because they seem to be specific objections to actual provisions of the rule but are just as inaccurate. 

I’ll address many of these allegations below, with a focus on the claims that have been made about the rule’s purported effects on farming.  For additional information (or if you just don’t want to take my word for it), EPA produced a helpful fact sheet summarizing the ways that the agencies have sought to accommodate concerns that some agricultural interests have raised, and the National Farmers Union put out its analysis dispelling numerous myths about the rule’s impact on agriculture.

Myth: Water bodies on agricultural land are not considered waters protected by the Clean Water Act.

W Branch Perkiomen Creek.jpgFact: I actually can’t recall seeing claims quite this bold, but it would be easy for someone reading the rhetoric about how the proposal allegedly will dramatically increase agricultural operations’ need to get Clean Water Act permits to assume that waters on farm land are not protected from pollution today.  But that’s in no way the case, and the current rule is entirely about which waters deserve protection.  So, for instance, perennial streams are routinely covered by the law today, even ones that are barely deep enough for wading in many spots – like the North Branch of Perkiomen Creek (pictured here) flowing through my buddy’s family farm in Pennsylvania.

There’s at least one really good reason not to pretend that water bodies on agricultural land aren’t actually waters – loopholes tend to be exploited, and illegal activity on farm land could have significant ramifications if it were ignored.  I for one am glad that pollution control officials were able to bring to justice a group of people who conspired to illegally dump construction debris, including some contaminated with asbestos, in waters near the Mohawk River on a farm in upstate New York.

Myth: Adopting the rule’s protections will not meaningfully affect water quality.                   

Fact: The rule would clarify protections for nearly two million miles of streams outside of Alaska that don’t flow year-round, along with countless nearby wetlands and other waters.  Moreover, it would improve protection for 20 percent of the roughly 110 million acres of wetlands in the lower 48 that, because they don’t appear to be connected to downstream waters, have been effectively cut out of the law for more than a decade. 

The importance of the functions these waters perform cannot be overstated.  A single acre of wetland can store 1 to 1.5 million gallons of flood water and wetlands in the continental United States save as much as $30 billion in annual flood damage repair costs.  Meanwhile, approximately 117 million people in the continental U.S. states depend on small, seasonal, or rain-dependent streams for at least some of their drinking water, according to an EPA analysis. 

Myth: Under the proposal, “nearly every drop of water that falls would be regulated by the federal government —the Environmental Protection Agency and the U.S. Army Corps of Engineers.” 

Fact: The Clean Water Act applies to “waters” not to all “water.”  I know that sounds like a lawyer’s answer, so let me explain – the Act’s pollution protection programs work by preventing or imposing conditions on discharges from discrete sources into surface water bodies, rather than controlling water wherever it might be, and that is why it’s critical to clarify what are “waters of the United States” for the Act’s various programs.  In the same vein, unless there is a defined water body, like a wetland or a tributary stream (which would specifically be defined in the rules), then the rules wouldn’t require water (like runoff during a rainstorm, for example) to be treated as one of the “waters of the United States.”

Moreover, this “every drop” claim is demonstrably false when you examine what the agencies expect will be protected after adoption of the rule.  In particular, the agencies’ economic analysis estimated that that the adoption of the rule as proposed would cover a grand total of somewhere between 17 and 26 percent of waters that are completely unprotected under policies in place today (the net effect of this increased protection, as noted above, is roughly a three percent increase in the waters being protected overall).  Back when I took math class, 26 percent was a lot less than 100 percent.

Myth: Even if not every drop of water is regulated, any place that water collects will be, including “all man-made bodies of water, ponds, ditches, flood plains and even standing water in potholes.” 

Fact: The proposed rule would exempt many “man-made” features explicitly.  This includes the following  features (please, I beg you, look at the proposed rule text, in the first column of p. 22,263, if you want to confirm this for yourself):

Artificially irrigated areas that would revert to upland should application of irrigation water to that area cease; [a]rtificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing; [a]rtificial reflecting pools or swimming pools created by excavating and/or diking dry land; [s]mall ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons; [and] [w]ater-filled depressions created incidental to construction activity….  

The proposal also would not regulate floodplains, because – as noted in the prior answer – it only protects bodies of water.  

And the proposal would most certainly not regulate standing water in road potholes or “puddles.”  The actual proposal (again, please don’t take my word for it – this appears on p. 22,218) discusses whether the rule would apply to a "relatively small, temporary pool of water that forms on pavement or uplands immediately after a rainstorm,  snow melt, or similar event."  EPA and the Corps says specifically that "[s]uch a puddle cannot reasonably be considered a water body or aquatic feature at all, because usually it exists for only a brief period of time before the water in the puddle evaporates or sinks into the  ground." The agencies go on to say that such areas "obviously are not, and have never been thought to be, waters of the United States....".

And while we're at it, since opponents of clean water protections seem to have boundless creativity in inventing horror stories about what will be regulated by the Act, let's state for the record that the rule also would not include water in the back of a farmer's pickup truck after a rainstorm, the birdbath in my parents' backyard, or the crocodile tear on the cheek of the industry lobbyist complaining about this rule's alleged overreach.

Myth: The government is trying to change the law to cover "waters of the United States" when the law was only intended to cover navigable waters.  

Fact: The Clean Water Act – since 1972 – has protected water bodies that cannot float a boat, which makes sense with respect a law that focuses on pollution control, not marine travel.  In fact, although the Act frequently uses the term “navigable waters,” it defines that term broadly to mean “the waters of the United States, including the territorial seas.”  As a result, when the question of what kinds of features qualify as “waters of the United States” has reached the Supreme Court (something that has happened three times in the Act’s history), no Justice of the Court – not one – has ruled that the law only applies to actually navigable waters.  Opponents know this well, but they often confuse folks who might not, sometimes just with strategically-placed quotation marks, like this position statement, which says the Act “limits federal jurisdiction to ‘navigable’ waters of the United States.”  Unless you knew that the law then also defines “navigable waters” to include a variety of things that aren’t navigable, you’d easily be misled.

Myth: EPA and the Corps don’t have the authority to go around Congress and develop these rules.

Fact: Opponents of the proposal who suggest that the agencies are powerless to act are singing a new tune – many of them previously advocated for administrative rulemaking.  Furthermore, as the nonpartisan Congressional Research Service has noted, the Clean Water Act “leaves it to the agencies to define the term ‘waters of the United States,’ which EPA and the Corps have done several times, most recently in 1986.”  The agencies of course must follow the decisions of the Supreme Court when interpreting the Act, but the proposal does that scrupulously, by protecting only those water bodies that the scientific evidence shows to have significant effects on the chemical, biological, and physical makeup of downstream waters.  (Indeed, NRDC and many of our partners are concerned that the agencies have been too restrictive on this score, and failed to protect waters that have clear and substantial effects downstream.)

Myth: The proposal will sweep “ditches” into the Act’s pollution control programs when they hadn’t been previously covered.  

Fact:  For starters, the implication that ditches would be newly covered as waters of the US is simply not accurate.  No less of an authority than the U.S. Court of Appeals for the D.C. Circuit has noted “the Corps’s persistent view that some upland ditches may be jurisdictional,” and President Bush’s Solicitor General told the Supreme Court that “[t]he Corps has not drawn a distinction between man-made channels or ditches and natural channels or ditches.  And, of course, it would be very absurd for the Corps to do that since the Erie Canal is a ditch.”

Notwithstanding the historic application of the law to many waters that have been altered or created by people, the proposal would exclude “[d]itches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow.”  This approach actually weakens (in a way I’m not too thrilled with, frankly) the Bush administration’s guidelines that are currently on the books.  Moreover, even when manmade and man-altered waters are treated as covered waters, numerous activities in and around them can be exempt from permitting programs under the law; for example, under the Act, discharges of dredged or fill material associated with “construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches” will generally be exempt

Myth: Despite the fact that the agencies have declared 56 different agricultural practices to be typically exempt from the Act’s dredge-and-fill permit program, doing so actually limits what’s exempt under the law. 

Fact: This one’s truly bizarre, especially since the agencies say clearly that they are not creating an exclusive list of what is exempt.  Specifically, the new exemption action says that it “identifies additional activities considered exempt from permitting under section 404(f)(1)(A), but does not affect, in any manner, the scope of agriculture, silviculture, and ranching activities currently exempt from permitting under section 404(f)(1)(A) including, for example, plowing, seeding, cultivation, minor drainage, etc.” 

Myth: The agencies’ exemptions should exempt more agricultural discharges from more parts of the Clean Water Act.

Fact: It is true that the agencies’ action in identifying exempt activities doesn’t apply beyond the Corps’ “dredge and fill” program, but the Act contains other additional agricultural discharge exemptions that shield producers from responsibility for much of the fertilizer- and pesticide-laden runoff coming from their land.  For example, the Act (in paragraph 14 of the Act’s definition section) exempts from permitting any “agricultural stormwater discharges and return flows from irrigated agriculture.”  With respect to discharges that are not exempted, like pesticides sprayed into water bodies themselves, it’s appropriate not to give such discharges a free pass, and the Clean Water Act does not do so.  That being said, there are fast-track permits both for the dredge-and-fill program for agricultural activities and for the industrial/municipal permit program for pesticide discharges

And one other note on this score -- there's good reason to think that the agribusiness lobby is exaggerating the degree to which this rule will require new permitting for discharges not covered by various exemptions.  Remember this crucial point -- the rule will protect fewer waters than were covered during the 1980s and 1990s.  Given that prior broad scope, and if you accept industry advocates' claims that the exemptions are too narrow or not effective, one would expect a mountain of old permits for farms from back in the day.  Do those exist?  The opponents of clean water protections sure haven't produced them, which makes me wonder whether they might be overstating the likelihood of increased permitting.

Myth: By exempting agricultural practices done in accordance with guidelines from the Natural Resources Conservation Service, EPA and the Corps have narrowed the scope what’s exempt. 

Fact: The agencies’ action does not mean that activities that aren’t on the list or that aren’t conducted pursuant to NRCS standards will be automatically required to get permits.  It only means the reverse – if they are on the list and conform to the NRCS standards, they are exempt.  Moreover, the NRCS standards are not overly demanding, notwithstanding claims by the agribusiness lobby (subscription required) that these are “not just the gold standard," but "the Bentley, platinum standard."  NRCS standards in fact are extremely flexible; they’re available online, and even just a quick review will show you that they have a lot of language that permits an agricultural operator to use his or her good judgment about what’s “appropriate” or “adequate,” and that the operator should “consider” or “evaluate” certain things.

Myth: The agricultural exemptions are not available unless a site has been farmed continuously since 1977.

Fact: There is no truth to this claim, made by the American Farm Bureau Federation.   I honestly can’t imagine why anyone would think this.  The exemption is available for “normal farming” and is therefore applicable to established farming operations (that is, one cannot take a non-agricultural property and bury the wetlands onsite for purposes of creating new cropland), but that requirement is flexible enough to take account of the kinds of things – like crop rotations, fallowing fields, and alternative cultivation practices that might vary over time – and there is no 1977 trigger date for these exemptions.

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