“Laws are like sausages. It’s better not to see them being made.” — Otto von Bismarck, German Prussian politician (1815-98)
The American Farm Bureau Federation is helping raise the alarm over the Waters of the United States rule that the Environmental Protection Agency is trying to push to adoption. This is the same rule you may have heard about that would give the EPA jurisdiction over puddles in a farmer’s field after a rain.
These puddles would become Waters of the US and subject to EPA regulation. Want to spray a fungicide to control rust on your soybeans? Under this rule, the fungicide manufacturer may well be required to do an Environmental Impact Statement to satisfy an aquatic label for the fungicide. That costs time and money.
Waters that have been part of WOTUS would be dropped from consideration — arbitrarily, according to the Corps of Engineers — while isolated wetlands that have never been part of WOTUS would be covered. All of this is being proposed in a way that the Corps cannot defend or support and has been fighting to change. The Corps has argued that this rule has no basis either in science or economics. This new rule, if implemented as proposed, will have profound repercussions on agriculture, the cost of food and the protection of critical habitat for wildlife.
Understand that the Corps is not arguing whether these new rules are good or bad. They are arguing whether they can stand up in court. The Corps say these rules cannot stand up to legal scrutiny and has made suggestions to make some of these rules legal and suggestions on dropping others. Whether the rule is legal or not does not depend on science or common sense. It depends on whether a federal judge agrees.
That should send a shiver down your spine.
Under the new WOTUS rule, a dry wash in Arizona that carried water in a flash flood once — not in a season, not once in a year, but once ever — becomes WOTUS and subject to federal regulation. Ditches in a farmer’s field and ditches along a county or city street become federally regulated waters. Want to clean a ditch? Apply for a federal permit. Can you hear the calls for more spending to fill whole new departments with staff at the state, county and city levels to fill out these permits to do the same work they are already doing? What if the EPA says no? Do we sit back and let the beaver dam flood out whole neighborhoods? Adjacent, as in adjacent waters, has meant wetlands. The justification in the past has been that nearby wetlands that drain into navigable waters contribute to the flow of water in the navigable waterway. It is darned hard to refute that point.
The new definition now means all waters are considered adjacent, whether they are wetlands or not and whether they drain into a navigable water or not. That farm pond you built across the railroad tracks from the creek but does not drain to the creek is now subject to federal regulation. Guilt by association. The pond owner no longer decides how his pond will be managed. There is a book of consequences in this rule change.
If you converted some land into cropland prior to the Clean Water Act, that land was exempt from federal regulation under the Clean Water Act. Most of us recognize this as “grandfathering.” Under the new rule, that exemption will disappear. The EPA can decide a farmer cannot put that land to work growing crops to pay the taxes on that same land. It is there just to catch rainwater. Sucks being you.
It is unclear whether swales built to improve water quality will become jurisdictional wetland. If you installed a rain garden on your property — commercial or residential — to slow the runoff during a rain event and increase infiltration, do you need a federal permit to enlarge it? To quote AFBF President Bob Stallman: “It is clear from the memos that there were dire concerns internally that (the) EPA was getting it wrong and with a high degree of arrogance.” Everybody seems to blame the Corps of Engineers because, being part of the uniformed armed services, they are not allowed to defend themselves.
This one isn’t on the Corps. It’s on us.