Tuesday Talks With Dr. Patterson

August 5, 2014

“Whiskey is for drinking and water is for fighting over.” This quote often attributed to Mark Twain is applicable to the current debate over a proposed rule by the Environmental Protection Agency (EPA) and the Army Corps of Engineers to redefine the “waters of the United States.” Many state and national farm organizations have opposed the proposed rule. Indeed, the American Farm Bureau has mounted a campaign calling for the EPA and Corps of Engineers to Ditch the Rule.

The “waters of the United States” (WOTUS) refers to the water bodies under the regulatory authority of the EPA as defined by the Clean Water Act (CWA). The CWA authorizes the EPA to implement pollution control programs, such as setting wastewater standards for industry and water quality standards for contaminants in surface waters, and requiring permits for the discharge of pollutants from point sources into navigable waters.

The need for the rule, proposed by the EPA and Corps of Engineers in March 2014 and published in the Federal Register in April, arose from the 2006 Supreme Court case Raponos v. United States, which resulted in a split opinion. The specific question dealt with whether the EPA had authority over a wetland or tributary. Justice Anthony Scalia wrote that smaller bodies could be regulated if they have a “significant nexus” to a “navigable water” and affect the quality of the water. The EPA and Corps rule was an attempt to define what bodies have a “significant nexus.”

Farm groups have expressed concern that this upstream expansion of regulatory authority could expose farmers to new permitting requirements or restrictions on farming activities, which would raise costs, reduce revenue, or both. Their challenge is based on what they perceive to be a lack of clarity over what water bodies will be regulated. The Farm Bureau argues that the EPA regulatory authority could extend to “puddles, ponds, ditches, ephemerals, and isolated wetlands.” The Farm Bureau position is presented on their Ditch the Rule website. The EPA contends that their position is exaggerated and offers counter arguments on its Ditch the Myth site.

Farmers and their organizations are appropriately questioning the language of the rule, which could have implications on their operations. Indeed, all Americans have an opportunity to comment on the rule until the comment period closes on October 20. It is worth remembering, however, that American farmers have done much to improve water quality through such production practices as precision agriculture, which reduce the amount of pesticides and fertilizers that are applied, reduced tillage or no-till farming, which reduce soil erosion and water runoff, and other soil conservation practices, along with improved nutrient management practices. Auburn University researchers and Extension agents have contributed extensively to these efforts. These efforts are significant, as farming has been cited as a leading contributor to water pollution in the past.

At the same time, it is important to recognize the contributions of Clean Water Act passed by Congress in 1972. Prior to its passage, flammable pollutants in the Cuyahoga River in Ohio had

caught on fire on several occasions, raw sewage was often dumped into our nation’s rivers, and two-thirds of America’s waters were regarded as unfit for fishing or swimming. The health of American waterways is much improved today.

Access to clean water is important to Americans’ health, wellbeing, and the economy, including the agricultural economy. The current water fight calls for efforts to understand the differences on each side of the ditch.