Environmentalists and former EPA officials are questioning whether farmers, touted by the Trump administration as one of the biggest beneficiaries of its rewrite of Obama clean water protections, would benefit from the new rule at all.
The farm lobby has been one of the most powerful sources of opposition to the 2015 clean water rule. Environmentalists say farmers’ support for narrowing federal water pollution protections gives cover to the oil and gas companies, miners, and developers that truly benefit.
They note that the Obama administration’s rule, known as the “Waters of the United States” rule, maintained long-time exemptions for normal farming and ranching activities under the Clean Water Act.
“It’s a little unclear to me what it is they want to be able to do, what kind of activity,” said Blan Holman, senior attorney of the Southern Environmental Law Center’s Charleston office and leader of its Clean Water Defense Initiative.
Real estate developers, miners, and fossil fuel companies, not farmers, are typically the ones seeking permits under the Clean Water Act, he added.
Trump administration officials, though, are adamant that their new rule will offer farmers, ranchers, and other landowners the regulatory certainty they’ve been asking for.
Under the new rule, farmers should be able to walk out on their land and know which waters are regulated by the federal government without having to hire expensive lawyers and consultants, Environmental Protection Agency Administrator Andrew Wheeler told reporters Thursday.
For the most part, farmers agree they’re getting more clarity.
“I am confident this is better than what we had before,” said Don Parrish, the American Farm Bureau’s senior director of regulatory relations.
The new rule, from the EPA and the Army Corps of Engineers, sets a narrower definition for which waters are covered by federal pollution protections. It excludes waters such as ephemeral streams, many ditches, and wetlands not directly adjacent to covered waters.
Farmers say the Trump administration’s rule takes the handcuffs off without jeopardizing clean water in the U.S.
Parrish, for example, noted the new rule doesn’t roll back or loosen any regulations related to pesticides or pollution from livestock operations, covered under toxics and air laws. Those are “still in place, and they are as stringent as they were,” he said.
Instead, farmers say the rule will alleviate concerns that much of what they do could be subject to federal control or enforcement actions.
For example, Jamie Tiralla, a farmer from Maryland, said she’s never personally had a run-in with federal regulators on her farm, but her farm is in the Chesapeake Bay watershed less than a mile from the river. There are a lot of low-lying areas in southern Maryland, where gullies can collect water during a heavy downpour, she said.
“There’s always that concern in the back of your mind: Is this something that the federal government is going to have jurisdiction over or not?” she said.
Environmentalists and former EPA officials say some water bodies will lose federal protections they’ve had since the Reagan era.
“If you dredge and fill streams, they’re lost forever,” said Betsy Southerland, former director of science and technology in the EPA’s Office of Water until 2017. Those types of actions could also cause downstream pollution, contamination of drinking water, and loss of flood control measures with the removal of wetlands, she said, adding that all of those effects ultimately end up costing the public.
Former EPA officials such as Southerland also say farmers’ fears of government overreach were overblown, stoked by partisan arguments.
“The disinformation campaign was so well done and so widespread,” said Southerland, who helped write the 2015 rule. “No matter what we did, they were convinced we were going to regulate every pond and dry ditch on their property.”
She and other EPA officials said they even added more specific exemptions to the rule after facing backlash from farmers as they were crafting it.
For example, one of the oft-used arguments against the Obama rule was that it micromanaged farmers’ lands, even regulating small puddles on a farm.
The Obama rule “gave bureaucrats virtually unlimited authority to regulate stock tanks, drainage ditches, and isolated ponds as navigable waterways and navigable water,” President Trump said in remarks on Jan. 19 to the American Farm Bureau. “You believe that? Sometimes, you’d have a puddle, a little puddle, and they’d consider that a lake.”
However, puddles, defined as small, shallow pools of water that form after rainstorms or other precipitation, were never covered by federal rules, said Mark Ryan, a former EPA water attorney who helped write the “Waters of the U.S.” rule.
“Puddles were specifically exempted from the 2015 rule. I know because I wrote that exemption,” said Ryan, now a principal at Ryan & Kuehler LLC in Washington state, adding it was largely to combat criticisms that puddles would be regulated.
Ryan, who during part of his time at the EPA brought enforcement actions under the Clean Water Act, said he didn’t run into a lot of confusion from farmers as to what was covered or not.
Typically, if a farmer was violating protections, it was something that clearly wasn’t lawful, such as large, 1,000-head cattle farms allowing manure to run off into a ditch or other water body or applying pesticides directly to ditches, Ryan said.
The EPA often didn’t bring smaller cases where it wasn’t as clear, given the agency’s limited enforcement resources, he added.
“Farmers are not so much looking for clarity as they are regulatory relief,” Ryan said. “They don’t want to be regulated.”
Nonetheless, Tiralla, the Maryland farmer, is optimistic the Trump administration’s rule will allow her to work through issues with state and local officials, without concerns the federal government will have to step in.
She and other farmers know state and local officials personally, she said. “We have their cellphone numbers. They know what you’re dealing with,” said Tiralla, who raises cattle and lamb on her 115-acre farm just 45 minutes outside of D.C.
“The federal government just can’t provide the same” assistance, Tiralla said.
