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Ditch the new federal water rules

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By Carl T. Shaffer
Tuesday, June 17, 2014, 9:00 p.m.

Farmers across Pennsylvania and the nation are opposing new rules proposed by the Environmental Protection Agency and the U.S. Army Corps of Engineers. Although the rules are characterized as regulating water, they would expand the federal regulation of virtually every acre of land under what the government agencies call “waters of the United States.”

EPA has stated that the rules will not affect agriculture, and representatives of the agency are traveling across Pennsylvania and the U.S. over the next few weeks, peddling stories that farmers have nothing to worry about.

Unfortunately, what EPA is saying publicly and what is actually written in the proposed rules are quite different. The proposal calls for expanded federal authority to regulate land use activities around small creeks and streams, and even pathways and ditches that carry water only during rain events.

The real impact will be restricting what farmers and even homeowners can do with their land. Farmers do have something to worry about under these plans.

EPA also claims it will honor agricultural exemptions currently provided under the federal Clean Water Act, but many of those exemptions are limited to plowing and earth-moving activities, and do not apply to the use of fertilizers or similar farm inputs on farm fields.

Some of the exemptions cited by EPA would apply only to longstanding farms, not new or expanded farms. Many practices in fields could require government approval through a complex process of federal permitting if the proposed rule becomes final. And if a farm family doesn't interpret the new rule correctly, it could be fined $37,500 per day.

Congress placed a clear limit on where federal authority over water begins and ends. Federal authority under the Clean Water Act extends to “navigable waters,” meaning rivers and lakes. Congress never intended federal permits to be required for ordinary farming and ranching, and two U.S. Supreme Court rulings have already upheld the scope of the act.

For example, a 2006 Supreme Court decision made it clear that “waters of the United States” are permanent, continuously flowing bodies of water that form a natural geographic feature. The Supreme Court twice rejected EPA claims that any body of water becomes federally regulated by its mere existence.

EPA and others would have you believe that unless the federal government regulates it, a body of water is not regulated at all. But in reality, small and local streams are regulated by state governments. In Pennsylvania, the state Department of Environmental Protection is actively inspecting farms and other activities along our 83,000 miles of rivers and streams.

Ultimately, the Pennsylvania Farm Bureau is calling on EPA and the Army Corps of Engineers to voluntarily withdraw their proposed rule. In absence of voluntary withdrawal, Farm Bureau is calling on Congress to take political and legislative action to require EPA and the Corps to “ditch the rule.”

Carl T. Shaffer, a Columbia County farmer, is president of the Pennsylvania Farm Bureau.

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