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Minn. farmers analyze new water rule: Does it go too far?

Farmers who worry that the federal government wants to regulate mud puddles on their land are examining a 297-page rule the Obama administration released Wednesday.

The new water quality rule was not well received in farm country, but agriculture groups' attorneys need time to study the document from the Army Corps of Engineers and Environmental Protection Agency to know its full impact.

The administration wrote the rule to protect streams and wetlands under the Clean Water Act, a step it said would help keep drinking water safe. However, farmers and industry groups argued the regulation will be costly and still may not provide clear definitions, a problem they faced before the new rule.

Farm country members of Congress did not like what they saw.

"I am disappointed, but not surprised, that the EPA has decided to move forward with a rule that would increase confusion and red tape," said U.S. Rep. Collin Peterson of Minnesota, the top-ranking Democrat on the House Agriculture Committee. "Farmers, ranchers, local communities and businesses all expressed concern with the negative impacts of this rule. Despite that, EPA either wasn't willing to listen or simply just does not get it."

U.S. Sen. Heidi Heitkamp, D-N.D., said it is "frustrating" that federal officials did not give Congress time to pass legislation that would have provided guidance about what water can be regulated.

"As a result, it (the federal government) unfortunately still considers many prairie potholes as waters that it will regulate, which doesn't address all of the serious concerns of farmers and ranchers," Heitkamp said.

U.S. Rep. Kevin Cramer, R-N.D., called release of the rule "disturbing."

"A majority of the U.S. House as well as thousands of landowners, businesses and agriculture producers from across the country oppose this clearly unconstitutional power grab," Cramer said.

U.S. Sen. John Hoeven, R-N.D., added , "We will continue our efforts to either rescind the rule through legislation or defund it through the appropriations process."

The Waters of the United States rule aims to give clarity about which bodies of water the EPA would have jurisdiction over.

Among key elements of the new rule are that it defines and protects tributaries that have an impact on downstream waters, and focuses on streams that can carry pollution downstream.

The Healing Our Waters-Great Lakes Coalition praised the rule.

"At a time when federal Great Lakes restoration investments are delivering results for our environment and economy across the region, the clean water protection rule will help ensure that those gains are protected and not undermined," Todd Ambs of the coalition said.

But opponents say the ruling is an overreach of bureaucratic power.

"If the EPA is allowed to interpret the Clean Water Act under this ruling, it would allow them a foot in the door to almost anywhere," said Pete Hanebutt, director of public policy at the North Dakota Farmers Bureau. "Every water body is going to be designated as significant. This is a serious problem for America, not just rural folks."

He said the Clean Water Act, which was enacted in 1972 was working "just fine the way it was."

"We have some of the cleanest natural water bodies anywhere in the world," Hanebutt said.

With this ruling, he said, federal enforcement agencies would be able to step into the backyard of almost anyone.

Protecting America's waters is key to combating climate change, a priority of the Obama administration, EPA Administrator Gina McCarthy said.

President Doug Peterson of Minnesota Farmers' Union said McCarthy called him Wednesday morning and he was convinced she tried to write a rule that treated farmers better than a preliminary one. "What I took from the conversation we had is they are actually trying to make it better."

However, Peterson said, he has not had a time to read the rule.

President Kevin Paap of the Minnesota Farm Bureau said "every lawyer we have in American Farm Bureau is doing a thorough analysis."

The federal Clean Water Act was "clearly" only meant to give the EPA power over navigable waters, Paap said. But even before his lawyers finish their examination of the rule, it is obvious he thinks Wednesday's document expands jurisdiction to smaller waters, perhaps ponds and "prairie potholes," which are depressed wetlands like marshes.

Farmers fear the new rule could prevent them, and others, from doing things they always have done such as building fences, digging ditches and draining ponds.

The EPA claims "normal farming and ranching activities don't need permits under the Clean Water Act."

Papp said the fear is that under the rule, citizens such as environmentalists will take farmers to court and a judge will decide what the rule means. "You are not going to know if you are covered or not until you have a citizen lawsuit."

The Farm Bureau president said the rural concern is that the rule "is just as much about land use regulation as it is about water quality."

Doug Peterson the problem arises because "we have bureaucrats in agencies that do not farm nor do they know anything about farming."

In his 20-minute talk with McCarthy, Peterson said, she explained that she tried to exempt ditches from EPA regulation.

Don Davis
Don Davis has been the Forum Communications Minnesota Capitol Bureau chief since 2001, covering state government and politics for two dozen newspapers in the state. Don also blogs at Capital Chatter on Areavoices.
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