November 13, 2014

Comment Window On Controversial ‘Waters Of The U.S.’ Closes

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The public comment window for the Waters of the U.S. rule closed on Friday, Nov. 14 – more than half a year after the regulation was introduced.

The conversation on the rule has been highly contentious, drawing criticism from national lawmakers, state officials, agricultural associations and individual farmers, many of whom have voiced their concerned through public meetings, news articles, congressional letters, formal comments and thousands of posts on social media.

The rule, a joint-proposal from the Environmental Protection Agency and the Army Corps of Engineers, aims to clarify what bodies of water the federal agencies can regulate. The agriculture industry has largely opposed the rule, arguing it will impede on farming operations with unnecessary and unclear regulation.

Champaign County, Illinois, grain farmer Lin Warfel points to a drainage area on his property on Nov. 5, 2014.

Claire Everett/Midwest Center for Investigative Reporting

Champaign County, Illinois, grain farmer Lin Warfel points to a drainage area on his property on Nov. 5, 2014.

“It’s very concerning,” said Lin Warfel, a corn and soybean farmer from just outside the central-Illinois village of Tolono. “The ambiguity of the regulations will lead to lots of problems for me as a farmer.”

For Warfel and others in the agriculture industry, the main sticking point on the rule is its added protection of seasonal and rain-dependent streams. Many farms – including Warfel’s – have long drainage ditches that stay dry for most of the year, but fill up and connect to rivers during heavy rains.

The proposed rule, which falls under 1972 Clean Water Act, also seeks to protect wetlands.

“Clean and safe water is important to everybody in the United States,” said Ellen Gilinsky, an EPA senior policy adviser. “A lot of people take it for granted, but without the protections under the Clean Water Act, you know, we had rivers on fire back in the ‘70s.”

With just a couple of days left before the public comment period ends, the proposed rule has received more than 12,000 formal comments.

“The overriding concern of a diverse group of impacted stakeholders, including state leaders, is that the proposed rule will impose significant barriers to the advancement of innovative, state- and local-driven conservation and environmental practices that would actually advance our common goal of water quality,” Iowa Gov. Terry Branstad wrote in a letter to the EPA.

“Because the rule is fatally flawed, we request that it be withdrawn and that future rulemaking be appropriately coordinated with States and relevant stakeholders. We agree that clean water requires good, clear, well-designed regulations – unfortunately, the ones current being proposed are not.”

The Illinois Soybean Association, the Illinois Beef Association and the National Pork Producers Council are just three of the groups that submitted comments, documented on Regulations.gov.

“It is absolutely ridiculous to consider any puddle or amount of water that runs across a field, gold course, yard, park, ball field, as waters to be regulated as ‘Waters of the U.S.,’” wrote one Champaign County farmer.

“For the EPA to claim jurisdiction over these ditches and water ways would severely impact the decisions I make over how I farm,” wrote another.

Congressional records also show that nine U.S. senators, including Sen. Chuck Grassley, R-Iowa, and new Senate Majority Leader Mitch McConnell, recently signed their names to a letter directed to EPA Administrator Gina McCarthy, Army Secretary John McHugh and U.S. Department of Agriculture Secretary Thomas Vilsack.

“As the Administration continues to extend the timeframe for finalization of the flawed WOTUS proposal, any further discussion of how agricultural activities may fit into this framework must allow for a transparent and public process in which the voice of American agriculture can be heard,” the letter, dated Oct. 23, stated.

The American Farm Bureau Federation sponsored a handful of mass-mail campaigns that urged farmers to submit negative comments.

“The more regulations I have to put up with, the less profit I have, the more complicated my production practices get,” said Warfel, who is harvesting his 52nd crop since taking over the roughly 2,000-acre farm established by his great-grandfather in 1882. “I’m very concerned about this new set of regulations.”

SUPPORTERS TRY TO COUNTER ‘MISINFORMATION’ CAMPAIGN

Yet, some of the concern coming from the agriculture industry may be misguided, according to Gilinsky, who spent the summer and parts of this fall traveling across the country talking one-on-one with producers.

A drainage pipe is positioned on Lin Warfel's property in Champaign County, Illinois, on Nov. 5, 2014.

Claire Everett/Midwest Center for Investigative Reporting

A drainage pipe is positioned on Lin Warfel’s property in Champaign County, Illinois, on Nov. 5, 2014.

“Unfortunately, while many stakeholders in the agriculture community have brought up some very valid concerns with some of the wording that we’ve used and how it could be clearer, overall, there’s a lot of misinformation out there saying that farmers are now going to need permits to plow their fields,” she said.

The proposed rule, for example, does not change the special exemptions and exclusions the Clean Water Act has provided the agriculture industry throughout the past 40 years.

It also does not add regulation to farm ponds, and it specifically excludes groundwater.

“It’s worth noting that the statue itself provides specific exemptions for certain agricultural operations, such as the discharge of dredge or fill from normal farming operations or irrigation return flows,” said Al Lin, a law professor at the University of California-Davis who specializes in environmental law. “These exemptions are found in the statute itself, and so cannot be changed by agency rue.”

A Midwest Center for Investigative Reporting analysis shows that social media has played a key role in the public’s understanding of the rule. For instance, critics have used the Twitter hashtag “#DitchTheRule” to share why they oppose the Waters of the U.S. rule. Since August, the tag has been tweeted or retweeted more than 14,000 times.

The American Farm Bureau Federation has used the tag more than any other user, and its Twitter cover photo is currently a picture of a puddle in a field with the words “it’s time to ditch the rule.”

“In agriculture, we’re at a point where we want to really tell people, ‘Stop. Wait. Give us some relief, here. Back off,’” Warfel said.

To dispel some of inaccurate criticism, the EPA introduced a Twitter tag of its own, “#DitchTheMyth.”

READ MORE: EPA ROILING THE U.S. WATERS, BY CASSIDY RILEY, DAILY IOWAN ETHICS & POLITICS INITIATIVE REPORTER

IOWAN OFFICIALS SHOW OPPOSITION

Various Iowa county boards of supervisors have submitted comments, often using the same wording, to show their opposition to the proposed rules.

“We are very concerned that the proposed rule would modify existing regulations, which have been in place for over 25 years,” states separate letters from supervisors in Palo Alto, Carroll and Dubuque counties and Story County Engineer Darren Moon. “Because the proposed rule could expand the scope of the CWA jurisdiction, counties could feel a major impact as more waters become federally protected and subject to new rules or standards.”

That wording is used in similar letters from county supervisors and commissioners from other states, as well, including Calumet County, Wisconsin; Del Norte County, California; and Cheyenne County, Nebraska.

Robert Smith, chairman of the Harrison County Board of Supervisors wrote that the rule could impact county roads and ditches, flood control channels and drainage areas. “The proposed rule does not ‘reduce uncertainty’. It does the opposite by creating more questions than it answers,” he wrote.

Wendy Wintersteen, ISU Dean, College of Agriculture and Life Sciences

Wendy Wintersteen, ISU Dean, College of Agriculture and Life Sciences

Wendy Wintersteen, dean of the Iowa State University College of Agriculture and Life Sciences, wrote that the rule will create uncertainty for farmers when deciding soil and water conservation practices.

“The rule as currently written may result in farmers who are more reluctant to engage in potentially beneficial conservation practices or who are hindered in their ability to effectively implement practices,” she wrote. “As such, the proposed rule places an undue burden on the conservation services provided by state and federal agencies.”

A group of northwest Iowa officials, the Iowa Drainage District Association, listed several concerns and mistrust of the EPA was among them. “The rule assumes you are guilty,”  Executive Director John Torbert wrote in the association’s EPA comment.

“The burden of proof for asserting that the CWA does not cover a particular practice or activity falls back to the public. This is exactly opposite of what the situation should be. EPA should have to demonstrate that they have the clear ability to enforce the act in specific circumstances.”

READ PUBLIC COMMENTS ON THE PROPOSED ‘WATERS OF THE U.S.’ RULES

The Midwest Center for Investigative Reporting is an independent, nonprofit newsroom devoted to coverage of agribusiness and related topics such as government programs, environment and energy.  Visit us at www.investigatemidwest.org/.
IowaWatch is a member of the Midwest Center for Investigative Reporting.
Reporting: Robert Holly from Illinois, Lyle Muller from Iowa.

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