EPA is stirring up the waters


Some of the nation’s rural drainage ditches and intermittent streams may be added to EPA regulation if a proposed rule is approved. ©Thinkstock.com

This spring, the Environmental Protection Agency proposed a rule under the Clean Water Act that would redefine what can be regulated by the U.S. government as a “water of the United States.”

Some of the nation’s rural drainage ditches and intermittent streams that are dry much of the year may be added to EPA oversight and regulation if the proposed rule is approved, according to the Michigan Farm Bureau. The MFB website calls it “a massive overreach that will impact agriculture nationwide.”

But the impact on land use won’t be limited to agriculture; it will extend to “anybody who puts a shovel in the ground in the countryside,” according to Laura Campbell, MFB’s manager of agricultural ecology. That includes home builders, she said.

“It is definitely of concern to us,” said Emily Lubbers, executive officer of the Home Builders Association of Greater Grand Rapids.

Lubbers said the National Association of Home Builders is urging members to contact their representatives about revising the EPA’s proposed new definition, “and really taking a harder look at all the costs associated with it.”

The proposal “really expands the federal jurisdiction tremendously on this,” she said, noting some new home sites probably already require permits if there is any potential impact on waters covered under the existing Clean Water Act definitions.

“But this would dramatically increase the number of construction sites that would require that,” said Lubbers. She said if a builder now has to get a permit under the Clean Water Act, “that sometimes takes two to three years, and right now there is a backlog of 15,000 to 20,000 of those, on average.”

Campbell said golf courses, mining companies, gravel companies, road construction and utility companies are “folks that are going to be impacted by this, in addition to agriculture.”

She said it could possibly impact a farmer’s use of fertilizers and pesticides if the farmland has a “wet spot” part of the year or abuts a drainage ditch. 

The EPA has a website, www2.epa.gov/uswaters/ditch-myth, which it says addresses “concerns and misconceptions about the proposal by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to protect clean water. The proposed rule clarifies protection under the Clean Water Act for streams and wetlands that form the foundation of the nation's water resources. The following facts emphasize that this proposed rule cuts through red tape to make normal farming practices easier while also ensuring that waters are clean for human health, communities, and the economy.”

The EPA says it is a myth that “the rule would regulate all ditches, even those that only flow after rainfall.” It says “the proposed rule actually reduces regulation of ditches because, for the first time, it would exclude ditches that are constructed through dry lands and don’t have water year-round.”

Campbell said the MFB is very aware of the EPA website, “but, really, we have to go by what the language of the rule says, and the language of the rule says that they are able to regulate any ditches that don’t have permanent flow and that don’t only drain uplands.”

Bryan Heffron, of Heffron Farms north of Lowell, farms about a thousand acres with his brother and father. He said he understands the proposed change by EPA would include the front yard of his home — “anywhere there’s water running after a heavy rain.”

“For agriculture, it’s a pretty big concern. It’s overstepping, I feel, what they were really set up to control and monitor,” said Heffron.

The Michigan Farm Bureau is calling upon its members and even non-members to submit a comment in protest on the EPA website. Due to the outcry so far, the EPA has extended the public comment period deadline to Oct. 20.

Campbell said there has been some legislation introduced in the U.S. House and Senate to prevent the EPA from changing its definition of Water of the United States, but she was not sure if those bills were going anywhere in Congress.

However, U.S. Sen. Debbie Stabenow of Michigan was among signers July 31 of a letter sent to the EPA, the Corps of Engineers and the U.S. Department of Agriculture, asking for “much-needed certainty the rule will not have unintended effects on agriculture.” 

Stabenow is chair of the Senate Agriculture Committee, and the letter was signed by a dozen other senators representing farm states.

Two issues raised are intermittent streams/low-lying fields, and farm drainage and ditches: “EPA and the Army Corps clearly states in the proposed rule that upland ditches are exempt from permitting. In a guidance document on the EPA website, it states that the agency intends to include ditches collecting runoff or drainage from crop fields as upland ditches. However, the rule itself mentions only ‘ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow.’ Many producers are concerned because their farms contain fields in floodplains. Because the ditches on these low-lying fields would not be considered upland ditches, they are concerned that these ditches are now jurisdictional.”

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