Iowa farmers’ efforts to install terraces, buffer strips and other conservation structures would be jeopardized by a maze of bureaucratic red tape if the federal government implements its proposed water rule, a veteran water quality official said last week.

"There is just no question this will retard a lot of the progress we have been making on conservation and water quality improvement," said Dean Lemke, who recently retired as the head of water quality programs for the Iowa Department of Agriculture and Land Stewardship (IDALS), and is now environmental stewardship director of the Agribusiness Association of Iowa (AAI). "Land­owners, who are often fin­ancing the improvements from their own pockets, just don’t have the resources and patience to navigate through the bureaucracy that this rule would bring. I think there will be a lot of people having second thoughts and cancelling good conservation and environmental projects."

Expanding jurisdiction

The proposed water rule, issued in April by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers, would greatly expand the federal government’s authority over how farmers manage their land. The rule would do that by broadening the definition of what is considered a navigable water or "water of the United States" and is subject to federal regulation under the Clean Water Act (CWA).

The agencies say the regulations should extend beyond rivers and streams to ditches, small "headwater" tributaries, riparian areas, adjacent waters and other areas that are far away from rivers, lakes and private ponds.

The navigable water designation is warranted, the agencies claim, even for areas that may only hold or convey water for a short time after a heavy rain.

"This is a very broad rule that gives the EPA a lot of room to make interpretations," Deidre Dun­­can, a Washington D.C.-based attorney who specializes in environmental law, told the attendees.

Much of Iowa’s farmland could be caught up in this broadened definition because it is crossed by many streams, rivers, waterways or drainage ditches and is often drenched by rain.

In addition, Lemke noted, the rules could include land with hydric soils, which can hold moisture for certain periods of time. An Iowa Department of Agriculture’s analysis shows there are 14.8 million acres of hydric soils in Iowa; that’s about 41 percent of the state’s total land area.

Permits required

If the rule is implemented, farmers could be forced to apply for permits to do all kinds of normal agricultural activities if they are done in a newly expanded "water of the U.S." Because the rule is written in such a vague way, farmers who want to install their own grassed waterways or build their own fence without using NRCS assistance or applying for a federal permit will not be able to be certain they are in compliance with the Clean Water Act. Installing structural conservation practices may require permits if installed on land with hydric soils or on land that holds or conveys water for any length of time.

And obtaining a federal permit from agencies that are chronically understaffed won’t be easy, predicted Lemke, who now works as a consultant to the AAI. "It certainly won’t be like getting a fishing license," he said.

Process never ends

Shawn Richmond, who coordinates the IDALS Conservation Reserve Enhancement program, said state programs designed to enhance conservation often run into bureaucratic slowdowns with federal agencies, even though the state agency has engineers, attorneys and other experts to call upon. "The process never seems to end," he said.

However, farmers may not have a choice. A farmer who is found to be out of compliance could face fines of $37,500 per day.

Beyond discouraging and slowing conservation work, the new water rule could cause a flood of problems and delays when farmers apply herbicides and insecticides, or hire ag suppliers to do it. "I think this will be a huge issue for the crop protection industry," Lemke said.

Applications of pesticides, herbicides and commercial fertilizers may in the future require federal National Pollutant Discharge Elimination System (NPDES) permits if the proposed water rule is implemented, said Christina Gruenhagen, Iowa Farm Bureau Federation government relations counsel. Federal law generally prohibits point source discharges to navigable waters without a permit. Once new areas in fields become vaguely defined as potential "navigable waters," it will be difficult to know if a farmer or applicator is complying.

Public hearings

The application process would likely include public hearings, and there is a strong potential for farmers to be subjected to citizen lawsuits from activists who want to expand CWA jurisdiction, she said.

To derail this rule, it’s important for farmers and others involved in agriculture to make comments to the EPA, Duncan said. "I worry that this rule is going through unless there is a strong pushback from the country," she said.

The EPA last week extended the comment period on the rule an extra 90 days until Oct. 20. For more information on how to make comments, go to Iowa Farm Bureau's EPA rule website.

For background on the proposed water rule, go to the American Farm Bureau Federation webpage