Jul 3, 2014
Water proposal could burden farms

Farmers have until Oct. 20 to tell EPA how they feel about its proposal to expand the “Waters of the United States” regulation under the Clean Water Act.

EPA and the U.S. Army Corps of Engineers issued a rule proposal in April, published in the Federal Register, redefining what is a “water of the United States.” The proposal could potentially erode Supreme Court rulings that have limited the reach of the Clean Water Act to navigable waters. Implementation could severely crimp agricultural operations across the country, according to those battling the proposed changes.

“It will regulate waters, regardless of how often they have water in them, including man-made ditches, county drains, ag drains, intermittent drains that only have seasonal flows, waters and wetlands in floodplains, as well as waters with an undefined significant nexus,” said Matt Smego, manager of government relations for Michigan Farm Bureau.

Smego spoke to Michigan blueberry growers in Holland, Michigan, in May regarding the muddied status of wetlands permits to be issued by the Michigan Department of Environmental Quality, but he said the impact of that situation would pale in comparison to EPA’s proposal becoming official.

“It will clearly put Michigan’s wetlands law (Public Act 98) out of compliance,” he said. “It will have to be amended again, or be at risk of losing (the state’s) delegated authority” to regulate wetlands.

Smego told growers that the proposed regulations “will interfere with your private property rights and farming activities, not just in Michigan, but around the country. While a lot of things we do on the landscape are vital, our interaction with soil and water is integral. It’s involved in everything that you do.”

After a 2006 Supreme Court decision regarding federal jurisdiction over non-navigable waters, EPA released guidance documents that would effectively expand the agency’s jurisdictional scope.

“The challenge is guidance documents do not carry the force and effect of law,” Smego said. “A rule, however, does. This is EPA’s way of formalizing and codifying the guidance that they had originally put out after that Supreme Court decision.”

A 90-day comment period on EPA’s proposal was originally scheduled to close July 21, but an extension was granted that pushed the deadline to Oct. 20.

“This, effectively, is the end run around Congress and the Supreme Court,” Smego said. “For the first time, this will grossly exceed what Congress intended back in the 1970s when the Clean Water Act was written. Additionally, it will go well beyond the Supreme Court decision in 2006.”

The traditional definition of navigable waterways under the Clean Water Act faced a common-law test. In Michigan, the test for navigability has been based on commerce – in this case the logging industry and the ability to float a log of a certain size down the water body, deeming it navigable.

“Those things that defined navigable, including those not meeting the log test, are now in the mix (for regulation),” Smego said.

The majority opinion of the 2006 Supreme Court ruling states that the Clean Water Act confers federal jurisdiction over non-navigable waters only if they exhibit a relatively permanent flow, such as a river, lake or stream. In addition, a wetland is jurisdictional if there exists a continuous surface water connection between it and a relatively permanent water body, such that it is difficult to determine where the water body ends and the wetland begins.

Justice Anthony Kennedy’s concurring opinion held that a wetland or non-navigable water body falls within the Clean Water Act if it bears a “significant nexus” to a traditional navigable waterway. Smego said this definition seems to be what EPA latched onto with its expansion of the rule.

Standing water, ponding at the corners or in roadside ditches and standing water during spring months could all require permit status if the grower wants to use that land for cropping purposes. Permits would be required for leveling or earth-moving activities, manure, chemical, fertilizer or pesticide applications – any farming on lands not already under cultivation, Smego said.

“Ag drains, ag ditches that we’ve explicitly said are not regulated under Michigan law (and most other states), the federal government would recapture and now say that they are regulated. What will be regulated is anything with flow, including ditches that will be considered a tributary, under this proposed rule. There is no examination of frequency, duration or continuity of the flow. If it’s got flow, even for a short period of time, it’s regulated.

“If it’s not a tributary, the use of the undefined, unlimited floodplain and riparian concept will make all other waters adjacent. If you’re in close proximity to an ag drain, those depressions in your field that are close to a drain will be regulated. Agencies will aggregate to find significant nexus.

“If you ask what would be regulated,” Smego said, “what would be easier to answer is what’s not. Where water flows and eventually leads somewhere, that will be effectively regulated under this new law.”

Opponents of EPA’s proposal are lobbying federal lawmakers to find ways to stop it from becoming official.

In April, U.S. Rep. Fred Upton of Michigan toured Grand Junction blueberry farmer Larry Bodtke’s operation and stressed his opposition to the plan.

“These rules and regs that EPA is thinking about putting out and getting comment on, they’re just wrong,” Upton said in a video produced during the visit. “These are not fishing ponds here along the road. This is a pretty darn good business, not only for blueberries. This is not something where EPA needs to come in and regulate people who will have to get permits and absorb costs.

“Who knows how much land they’re going to take out of production?” Upton said. “And of course, if they’re successful at doing that, where are we going to get the crops? They’re going to come from overseas. We can’t lose a season because of bureaucrats.”

Upton said there is an effort underway in Congress to deny funds to EPA to go forward with the approval of the proposed regulations.

“We just need to tell EPA to just go take a hike, that’s what it comes down to,” Upton said. “It’s important growers across (Michigan) and across the country weigh in and let them know what the costs of these burdensome regulations are going to do to them.”

Smego said that even if the effort is de-funded by Congress, “the Clean Water Act allows for citizen suits, allowing anyone who wants to take action against you. They will still have the opportunity to do so.

“There are clearly some flaws in what’s being proposed. We know that,” Smego said. “We have to communicate that message.”

American Farm Bureau Federation has started a #DitchtheRule! campaign to inform those interested in the topic. For more information, click here.

Blueberry growers depend on soils

Blueberry growers depend on access to hydric soils, which have similar qualities to wetlands.

Hydric soils are usually found in saturated, undrained conditions that are frequently flooded or ponded long enough during a growing season to develop an anerobic condition that supports the growth and regeneration of hydrophytic vegetation.

Larry Bodtke, a Grand Junction, Michigan, blueberry grower who also is involved in berry operations out West, stressed the importance of hydric soils and what could happen if access to them is severely limited by a proposed EPA water rule. The rule would expand the scope of permitting processes and require costly mitigation practices by growers.

Bodtke, president of the Michigan State Horticultural Society, spoke to growers gathered in May in Holland, Michigan.

Michigan is “the number one producer of highbush blueberries in the nation and has been for many decades,” Bodtke said. “The Michigan blueberry industry was built on hydric soils.”

According to USDA soil survey books, most blueberries in Michigan are planted in poorly drained areas that are frequently ponded, have low surface runoff, and the seasonal high water table is near or above the surface from January through April – leading to hydric soil conditions.

Mangement considerations for blueberry fields include droughtiness in the summer and excess water in other periods, and a soil that is poorly suited for such crops as corn and small grain but well suited to blueberries.

“That’s the kind of soils our blueberries are planted on,” Bodtke said. “It’s one of a few crops that are native to North America. It’s no wonder that with these soils Michigan became the U.S.’ largest producer of blueberries.

“However, we are now being seriously challenged by other states,” he said. “As recently as 2008, Michigan produced a crop size of 110 million pounds. In that same year, the state of Washington produced 30 million pounds; Oregon 44 million; and Georgia 31 million.

“This past year, 2013, Michigan produced about 114 million pounds; Washington 80 million; Oregon 80 million; and Georgia 68 million. Other states have been quickly gaining on Michigan and could very likely take over our position as the number one producer.

“We don’t need further hindrances to our ability to expand our production,” Bodtke said. “In order to continue to be in the blueberry business, the growers need the following to remain competitive – till and plant on hydric soils; to be able to adequately drain those soils, irrigate, mulch, apply appropriate pesticides and level out some of the undulations in the typography.

“We need to establish sites to construct wind machines for frost protection, parking areas for pickers and to replace beehives in the spring. We need to be able to build pump houses and bring in utilities.

“Without the ability to establish plantings that achieve the very best yields, we will not be able to remain in business.”

Bodtke’s parents started the blueberry operation in 1969, he said, and over the years the business has purchased different farms. In considering whether they could plant blueberries on those properties, “we looked at the type of soils they had on them. If they were hydric, we knew they would be good for growing blueberries.”

“Hydric soils built the Michigan blueberry industry, and that’s what we need to communicate to the people (who make the laws), and help them understand that blueberries are a wetlands plant and they need to be planted in soils that are very similar to what they want to call wetland soils. And if we’re going to continue strong as an industry, we have to get that message across to them loud and clear.”

Gary Pullano




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