Waters rule attracts critics

A controversial environmental rule would harm farmers and require permits for many regular farm practices, according to speakers at a meeting sponsored by the Iowa Drainage District Association and the MIDAS Council of Governments Wednesday morning at Fort Frenzy.

The U.S. Environmental Protection Agency has said the rule is not an expansion of jurisdiction, and that many “myths” are being spread about it.

The meeting was in opposition to a proposed new rule on the Waters of the United States by the EPA, which would clarify which waters are covered by the Clean Water Act.

The EPA has said the rule only offers clarification.

But John Torbert, IDDA president, and other speakers Wednesday said the rule would be a massive expansion of federal power, and could categorize much of Iowa farmland as a Water of the U.S.

“The administrator of the EPA either doesn’t know what’s in the rule, or is lying about it, or both,” Torbert said. “What the rule says, and what EPA says the rule says, are two different things.”

The comments won’t mean anything to a court, only what is in the rule, he told the about 129 people gathered.

The rule defines Waters of the United States as interstate waters, waters used in interstate or foreign commerce; the territorial seas; tributaries of a traditional navigable water; all waters including wetlands adjacent to a traditional navigable water; and on a case-by-case basis, other waters, including wetlands, that have a “significant nexus” with traditional navigable waters or territorial waters.

The EPA states the new rule will not cover groundwater or tile drains, increase regulation of ditches, or affect areas previously excluded from jurisdiction.

Dean Lemke, of the Agribusiness Association of Iowa, and Shawn Richmond, program manager with the Division of Soil Conservation, Iowa Department of Agriculture and Land Stewardship, talked about how they believe the rule will affect Iowans.

“The way I would summarize is there’s an increasingly larger net” in how jurisdiction is defined, Richmond said. He added that the description of wetlands, the description of connected waters, and the definition of a significant nexus leave too much land open to potentially be included.

“They said the rule was to provide more clarity, but they have been very vague. Take floodplains, for example,” he said. “There’s really no guidance on what kind of floodplain we’re talking about, and we would expect that. It doesn’t come as a surprise. It’s a rule meant for the nation. It can’t incorporate the level of specificity needed to identify and characterize specific state needs.

“By doing this overly vague approach, it catches everything.”

Though the EPA said agricultural storm ditches would be exempt, Richmond said the law only exempts ditches that do not have a significant impact on downstream jurisdictional waters. Since all water flows downhill, it would be easy to argue that all waters are connected and have a significant impact, he said.

Richmond showed a map of all the hydric soil in Iowa, soil which is permanently or seasonally saturated with water. The map covered 4.8 million acres, about 41 percent of the state. All this land could potentially be considered a wetland, and thus under EPA jurisdiction, according to Richmond.

Lemke said the expanded jurisdiction might force farmers to get a permit whenever they sprayed their land, if part of the farm field went over a jurisdictional water area.

Richmond also said excessive permit requirements could hamper farmers who want to engage in conservation practices.

“The Department of Agriculture particularly, with our partnership with the DNR, Iowa State University, our nutrient reduction strategy, we have real strong concerns about it,” Richmond said.

The EPA has said it worked with the U.S. Department of Agriculture to ensure 56 specific conservation practices will not be subject to needing a permit, including habitat restoration, irrigation field ditches, conservation cover, herbaceous weed control, prescribed grazing and stream crossing.

Gary Baise, an attorney from Washington, D.C., and farmer from Illinois, issued a stronger warning.

“Now (the EPA) is in the hands and control of the activists in this country. They are out to destroy the American economy as we know it,” Baise said.

Baise was the first chief of staff to the first EPA administrator. He said the EPA has played a positive role in the past.

“We did have lakes and rivers catching on fire,” he said. “You could barely see yourself in Los Angelos because of the smog. … So don’t get me wrong. The EPA has done a lot of very good things.”

The rule is in its public review stage. Comments will be accepted until Oct. 20.

EPA Administrator Gina McCarthy said the rule represents a decrease in jurisdiction, not an increase, in a July speech published on the agency’s website.

“In D.C., all we hear about are things like: EPA’s new rule will shut down the July 4th fireworks, EPA is trying to regulate the rain in puddles on driveways and in playgrounds, and every conservation practice that we all want to see happen will now require a permit. None of that is true,” McCarthy said.