Ditch the Rule: Comment on EPA Proposed CWA Rule by July 21

On April 21, 2014, the EPA and the Corps of Engineers released their long-awaited proposed rule to expand the Clean Water Act.

AFBF has carefully analyzed the proposal. Simply put, EPA and the Corps are now attempting to regulate virtually all water, something Congress has explicitly chosen not to allow and which two U.S. Supreme Court decisions have rejected.

For example, normal farming and conservation activities, such as fencing, brush management and pruning shrubs and trees, were exempted by Congress and have never required permits under the Clean Water Act. EPA and the Corps would now require farmers and ranchers to meet otherwise voluntary Natural Resources Conservation Service (NRCS) standards for these everyday normal farming activities and voluntary conservation practices, or else face Clean Water Act liability. By linking the normal farming exemptions to NRCS standards, the rule would make voluntary conservation standards subject to EPA enforcement.

This is unacceptable! AFBF President Bob Stallman recently said, “The American Farm Bureau Federation will dedicate itself to opposing this attempted end run around the limits set by Congress and the Supreme Court.” Read the full statement by clicking here.

Click here to read other stories on the EPA’s Water Rule:

• E.P.A.'s Proposed Rules of Water Worry's Farmers (New York Times)

• GOP Lawmakers Push E.P.A. to Ax Proposed Water Rule Amid Outcry from Farmers. (Fox News)

How you can stand with Farm Bureau:

Go here to take action and send your messages to EPA and the Corps by the deadline of July 21, 2014. 

Guide to Writing Your Comments:

A sample letter has been prepared with a required beginning and ending. We ask that you add details around your personal situation – where is your farm or ranch generally located (County/State), what do you raise and how long have you and your family been there?

Identical comments are not as influential as personalized letters, so your comments will have more effect if you can add details of the impact the proposed rule will have on your farm or ranch. Here are some important suggestions for your consideration.

• Talk specifically about some of the features of your farm—ditches, drainage ways, tilled fields and grassed waterways —that will likely be considered Waters of the U.S. under EPA’s proposed rule.

Your Key Message should be: The proposed rule significantly expands the scope of “navigable waters” subject to Clean Water Act jurisdiction. As I read the proposal it would allow the federal government to regulate most ditches, small and remote “waters” and ephemeral drains where water flows only when it rains. Many of these areas are not even wet most of the time and look more like land than like “waters.”

• Express your concerns about how your farm or ranch may be affected if the EPA is allowed to claim jurisdiction over ditches and washes on your land. Clean Water Act jurisdiction could result in severe restrictions on your farming or ranching—or even prohibit farming or ranching activities in or near ditches, washes or isolated “wetlands”—no matter the cost or the practical impact on you, your family and your farm or ranch.

Your Key Message here should be: Because of the proposed rule, farmers, ranchers and other landowners will face roadblocks to ordinary land-use activities—like fencing, spraying for weeds or insects, discing or even pulling weeds. The need to establish buffer zones around grassed waterways, ephemeral washes and farm ditches could make farmlands a maze of intersecting “no farm zones” that could make farming impractical.

• Explain any problems you or your neighbors have had dealing with wetlands or waters. If you personally have had problems with the narrow “normal farming” exemption, share your experience. Have you tried to build a farm pond and been told “no?” Have you tried to plant tree crops in areas where you farmed corn and been told “no?” Have you been told not to use certain tillage practices? Have you been told that you cannot use your prior converted croplands for some reason?

Your personal experiences or those of your neighbors are important and your Key Messages should include: The farming and ranching exemptions in current law are important, but they have been very narrowly applied by the agencies—and they will not protect farmers and ranchers from the proposed “waters” rule.

• Explain why those claiming that farmers and ranchers should have no concerns because they are “exempted” from the rule are wrong. It is important to convey that “normal farming and ranching” exemption only applies to a specific type of Clean Water Act permit for “dredge and fill” materials. There is no farm or ranch exemption from Clean Water Act permit requirements for “pollutants” like fertilizer, herbicide or pest control products. Under the proposed rule, many common and necessary practices like weed control and fertilizer spreading will be prohibited in or near so-called “waters” unless you have a Clean Water Act permit. Second, EPA’s new guidance on the “dredge and fill” exemption actually narrows an exemption that already existed, by tying it to mandatory compliance with what used to be voluntary NRCS standards. Third, EPA and the Corps of Engineers have interpreted the “normal” to mean only long-standing operations in place since the 1970s—not newer or expanded farming or ranching.

Your Key Message should be: EPA’s so-called exemptions will not protect farmers and ranchers from the proposed “waters” rule. If farmlands are regulated as “waters,” farming and ranching will be difficult, if not impossible.