Proposed Water Rule Draws Concerns Of Intrusion On Farmers And Ranchers Rights

There seems to be another government invasion on agriculture producers’ already dedicated efforts to care for resources so important to their survival and profitability.

Certainly, there is concern about impact of the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers proposed Waters of The United States (WOTUS) rule.

As of now, the Clean Water Act of 1972 only applies to “navigable waters,” but agriculture producers fear any creek, stream and ditch would be subject in the proposed new rule, when all of the fine print is deciphered.

A detailed look at the complicated government writing, and the loopholes difficult for lay agriculturalists to find, was presented and evaluated by Aaron Popelka, vice president of legal and government affairs for the Kansas Livestock Association, during the 580 WIBW Beef Producers Information Seminar at Emporia.

Preceding his remarks, Popelka emphasized the one and only possible reprieve for farmers and ranchers is that they have an opportunity to comment on the proposal until October 20, before it can be signed into law.

“It is essential to make the agriculture side of this very important issue heard loud and clear,” Popelka contended.

The rule is said to seek to clarify the definition of waters subject to the regulatory scope of the Clean Water Act, which was more narrowly defined in 2001 and 2006 Supreme Court rulings. The proposed rule would replace 2003, 2008, and 2011 guidance issued after the court rulings created uncertainty.

According to EPA and the Army Corps, “The rule would subject about 3 percent more U.S. waters to Clean Water Act jurisdiction.

“While the proposed rule would expand jurisdiction from existing EPA-Corps guidance, it would not enlarge the jurisdiction beyond the Supreme Court’s narrow reading,” they have claimed.

The additions come from new types and categories of, such as those adjacent to waters, as well as “other waters,” which have not traditionally been considered navigable, and do not meet other jurisdictional definitions.

Most of the controversy, surrounding the rule, focuses on these “other waters,” such as creeks, streams and ditches.

The EPA and Army Corps analyses show that about 17 percent of “other waters” would be jurisdictional under the proposed rule.

However, supposedly under the proposed rule, features such as prior converted cropland and certain ditches would not become jurisdictional.

“The proposed rule also makes no change to existing statutory and regulatory permit exclusions, such as those given to the agricultural sector,” EPA-Corps officials have insisted

“I think it’s a philosophy difference,” Popelka said. “They think the federal government ought to be the one that controls every aspect of water regulation. Those of us in the agriculture industry think that this ought to be left to the states, which it is in the Clean Water Act.”

Main issue at hand is between those making and enforcing regulations and the producers who need and use the water.

“Part of it has to do with that only 3 percent of us are in agriculture, and only 1 percent of these are cattlemen,” Popelka said. “I think the government is so far removed that they don’t understand that there’s mistrust.

“The regulators think we want to hurt the land that provides us with our livelihood, and that’s just not the case,” Popelka emphasized.

A handful of ranchers quoted in the Emporia Gazette about their opinions on the proposed water ruling verified deep concerns of the industry.

Jeff Davidson, watershed specialist from Eureka, said, “I think EPA is way overstepping their bounds, and I kind of feel like they’re trying to mislead us.”

Greg Gasche, Hartford cattleman contended. “It’s something we really need to be concerned about. We need to address it with our representatives.” ‘

Likewise, Jaret Moyer, Emporia rancher, insisted, “The EPA appears to be trying to make quite a reach into what areas they regulate. It’s a substantial expansion from what they’ve done in the past.”

Agriculture producers were encouraged by Popelka to visit, and follow the links to send a letter of opinion to the EPA.

“There is a letter already drafted, but producers can add their own situation and story to the letter. It’s also a good idea to contact your congressmen to voice opinions on the proposed water ruling,” Popelka urged.