NY Farm Bureau Tells EPA To Ditch The Rule

Nov 25, 2014

The comment period has closed for a proposed rule concerning the federal Clean Water Act. Before the deadline, the New York Farm Bureau barraged the U.S. Environmental Protection Agency with a few thousand postcards. Meanwhile, EPA says there are several misconceptions.

The New York Farm Bureau submitted public comments opposing the proposed rule as well as nearly 2,200 postcards asking EPA to “Ditch the Rule.” An EPA spokesman says the proposed rule, jointly from EPA and the U.S. Army Corps of Engineers, is about clarifying that the Clean Water Act covers certain streams and wetlands. The spokesman says the agencies received requests for rulemaking for nearly a decade to clarify Clean Water Act protections. Steve Ammerman is New York Farm Bureau spokesman.

“We do think it’s going to increase confusion and problems for our farmers who are trying to determine whether or not their land falls within the new jurisdiction of the Clean Water Act. That can potentially mean more costly permits, more delays in farm activity, and we don’t believe that it’s going to make any kind of impact on improving our water quality as it stands today,” says Ammerman.  “So there are many questions and issues that we think the EPA needs to answer. And we’re encouraging them to withdraw the rule, figure out the issues, clarify in more certain terms, and then we can move forward.”

EPA says protection for about 60 percent of the nation's streams and millions of acres of wetlands has been confusing and complex as the result of Supreme Court decisions in 2001 and 2006. About 60 percent of stream miles in the U.S. only flow seasonally or after rain, but have a considerable impact on the downstream waters. And about one in three Americans gets drinking water from public systems that rely in part on these streams. EPA says these are important waterways for which EPA and the Army Corps are clarifying protection. Again, Ammerman.

“What the EPA is calling new clarifications is actually muddying the waters, if you will, and now ditches could be considered tributaries of the United States, of the federal waters,” Ammerman says. “Dry land that may have an ephemeral stream, which is a stream that may be created after a rainstorm, also could now be under federal regulations. And that just begs the question for our farms is what is covered and what isn’t?”

Chris Pawelski is a fourth generation onion farmer in the Black Dirt region of Orange County.

“I am literally digging drainage ditches all the last couple of weeks. I’m doing it today. And it’s a necessary function of the black dirt. The black dirt needs drainage, and you have to have adequate drainage ditches or the fields basically become too wet and unfarmable. And no field is no larger than five, six acres at the most. And these ditches have to be dug at times, once a year, once every two years,  depending how much silt gets in either from wind or water erosion,” says Pawelski. “The fear I have is if this goes into effect, what kind of hoops am I going to have to jump through in order to dig my drainage ditches.” 

The Farm Bureau’s “Ditch the Rule” postcards are part of a months-long effort. Farmers and community members filled out the cards at county fairs, farm shows, and Farm Bureau meetings. They fear the rule will allow small ponds, ditches, and isolated wet spots to be treated as navigable waterways and that the proposal is a serious threat to farming and ranching, homebuilding, energy production, and other land use.

EPA on its website has responded with a “Ditch the Myth” section. Among the facts it says it wants to highlight, EPA says it and the Army Corps are not going to have greater power over water on farms and ranches, that the Clean Water Act and its regulations have multiple exclusions and exemptions from jurisdiction, and the proposed rule will not bring all ditches on farms under federal jurisdiction. EPA says the Clean Water Act only deals with the pollution and destruction of waterways and not land use.

Republican Congressman Chris Gibson, whose 19th District includes numerous farms, opposes the proposed rule to redefine U.S. waters. The House Agriculture Committee member believes that it creates ambiguity, significantly expands unelected bureaucrats’ authority, and goes beyond the authority vested in the Executive Branch through the Clean Water Act. Gibson has said that, at a minimum, such an expansive rule should move through Congress. In May, he joined with more than 200 members from both parties in sending a letter to the EPA and Army Corps of Engineers to request that the rule be withdrawn. Democratic Congressman Sean Patrick Maloney, also of the Hudson Valley, is among the lawmakers raising concerns.