Hill: Proposed water rule clear intrusion of property rights
Opposition is rising quickly to a proposed water rule that threatens to greatly expand the federal government’s regulatory authority over how farmers in Iowa and all over the country can manage their land.
Farmers, lawmakers and others are all pushing hard to stop the new rule, which was published in April by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps). Specifically, the rule would revise the definition of what is considered a "navigable water" or "water of the United States" that is subject to federal regulation under the Clean Water Act (CWA).
Under the proposal, the government regulations would be extended to ditches, gullies, riparian areas, adjacent non-wetlands and other areas that are away from navigable waters, even to the extent of a provision for "other waters" determined on a case-by-case basis.
The rules would also extend federal jurisdiction to areas that may hold or conduct water for only a short period of time after a rain storm.
The expansive language in the proposed rule would mean that farmers could be forced to apply for federal permits and work through government red tape to do normal activities, such as building a terrace, constructing a waterway, applying fertilizer or even planting a tree, according to Craig Hill, president of the Iowa Farm Bureau Federation.
The rule proposed by the two regulatory agencies goes well beyond the navigable waters that Congress cited when it passed the CWA in 1972, Hill said. And it also appears to be an end run around two U.S. Supreme Court decisions that decided the Clean Water Act does not give the federal government control over all water, he said.
"This proposed rule really goes beyond burdensome and would present a clear intrusion on property rights of landowners," Hill said. "It could also really set back all of the renewed efforts to increase the amount of conservation work that farmers are doing to reduce erosion and improve water quality under the Iowa Nutrient Strategy."
In an interview with the Spokesman last week, Hill spoke about the proposed water rule and the need to oppose it. Here are some excerpts of that interview:
What do you see as the biggest potential problems for farmers if the rule proposed by the EPA and the Corps is enacted?
In my career in farming, there has probably never been a greater threat to our ability to farm than this proposed rule. It is a tremendous expansion from where we are today, and I don’t think that we can really understand all of the problems or the level of control that the federal government could have over farmers if it is enacted.
The agencies have really launched a major offensive to rewrite existing law and change long-held definitions and practices.
What they are saying is that the government can regulate any land that could serve as a conduit for water flow into streams. Any inch of land that conveys water, even for a very short time, would be under federal regulatory control. It goes way beyond streams, rivers, wetlands and other things we usually think of as wet areas, and really covers an entire state like Iowa. It means the federal government can regulate things like ditches and puddles, and even areas where puddles once existed. I don’t think that’s what Congress intended when they wrote the Clean Water Act.
The rule is relatively short, but with explanations and definitions the document goes on for 370 pages and the bottom line is that it opens the door for the government to force farmers to seek permits for activities such as conservation practices or spraying. It could potentially deny landowners economic use of their property.
What’s the problem with requiring farmers to obtain federal permits?
First off, Congressional action and the Supreme Court rulings don’t authorize this broadening of the CWA. The other big problem is that permits would likely be required for every typical farming activity, such as building a fence, applying fertilizer or spraying weeds. That’s because any of those could be determined to be an illegal dredge and fill of soil or cause a discharge into an expanded universe of waters of the U.S. Some of these permits could take months, or even years, to obtain and there is no guarantee the permit would be granted. This jeopardizes important conservation projects and can hinder a farmer’s efforts to improve our soil and water resources.
And if a farmer is found to be out of compliance, fines of $37,500 per day can be assessed, and farmers could be subjected to citizen lawsuits from activists who want to expand CWA jurisdiction.
The agencies have said they have made exemptions to protect farmers. So why are you so concerned?
The new exemptions that the agencies have cited narrow current exemptions, and they really only apply to one aspect of the CWA, the dredge and fill permit program. Many farming activities would come under their proposal if they are done on land that holds rainwater or contributes flow to a stream. The exemptions are available only to farmers who have been farming that particular farm continuously since 1977. In addition, the exemptions require mandatory compliance with Natural Resource Conservation Service (NRCS) standards, which have been voluntary and are usually only followed verbatim when cost-share is provided. Additionally, the NRCS has authority to change the standards at any time they deem necessary.
Finally, there is nothing stopping the EPA and the Corps from changing or removing some or all of the "so-called" exemptions without public notice. EPA and the Corps say they don’t intend to expand their jurisdiction, but after reading the rules, even I can tell that it will dramatically expand their reach into Iowa landscapes.
You noted that the proposed federal rule could hurt progress on Iowa farmers’ efforts to conserve soil and improve water quality. Why?
Farmers will have to get permits to do any type of conservation work when it might touch on or impact a newly defined federal water, such as a terrace, establishing a waterway or planting a sediment basin. Many farmers are putting in conservation measures such as grassed waterways on their own dime without federal help. They aren’t going to spend $30,000 for a permit in order to install a $5,000 conservation practice. The rule discourages farmers from doing needed work and forces resources to be spent on red tape instead of conservation practices.
And farmers will need to document and prove that they installed the practices in accordance with NRCS specs. This will require someone, likely a NRCS technical advisor, to check the work at a time when the agency is short staffed.
This rule is going to delay and possibly prevent some very good conservation work. We’ve seen some that in Iowa as the agencies have already begun requiring reviews of conservation work, and it would be a lot worse if this rule is enacted. It will also remove incentives for farmers to innovate and improve conservation practices, because everyone will be forced to make sure they adhere to the strict rules to stay compliant with federal law.
If you don’t like this rule, what’s a better answer to protecting water?
Meaningful progress from voluntary programs that are run by states are far better than a one-size-fits-all mandatory federal program like the one being proposed. Congress, not federal agencies, writes the laws of the land. When Congress wrote the Clean Water Act, it clearly wrote that the law applied to navigable waters. Is a small ditch navigable? Is a stock pond navigable? Is a puddle in your back yard navigable? How does that improve water quality? The principles of private property and land ownership instill in an individual the responsibility and the desire to improve property for an owner’s good and the rest of society. We’ve seen the past decades’ conservation work beginning to show results with improved fisheries and improved water quality. It’s always better when farmers and landowners install conservation work out of a self-desire to make the property the best it can be, rather than being dictated by somebody in Washington who doesn’t understand Iowa farming.
What can Iowa farmers do to oppose the proposed water rule?
First, it’s important to learn about the rule and its potential consequences. The American Farm Bureau Federation has a very good website, http://ditchtherule.fb.org which provides a lot of information on the proposed rule and its potential consequences. Then it’s important to tell the federal government why you oppose it. The comment period for the proposed rule runs through July 21. Comments can be submitted through this IFBF link: http://tinyurl.com/n6ecqdk
Every citizen in Iowa, farmers and non-farmers, should be very concerned about this proposal.