The cease and desist regime

EPA Boosts Water Policing as Farmers Say Worst Fears Realized

By Mark Drajem 

Fifth-generation farmer Kenny Watkins ran afoul of the U.S. clean-water police in 2009. His infraction: Planting hay in a pasture.

The U.S. Army Corps of Engineers ordered Watkins to stop cultivating a 160-acre (65-hectare) tract in central California because he might destroy seasonal ponds and harm the San Joaquin River. Watkins has defied the decision and the federal government’s control over what he can grow on his farm.

His battle is cited by agriculture groups as they try to fend off a proposal by the Corps and the Environmental Protection Agency to enlarge the U.S. role in guarding waterways against contamination. The two agencies are reviewing a plan that would require permits under the Clean Water Act for work on wetlands or small channels that are usually dry. They say they’re clarifying authority they already have and critics say it’s a power grab.

“Our worst fears are being realized,” Watkins, 48, said in an interview with Bloomberg Government, predicting his experience may be repeated on cropland across the country. “They keep coming up with more tools to use against us.”

Farmers aren’t the only ones complaining. Homebuilders, railroad companies and steelmakers say the added bureaucracy would make them spend thousands of dollars seeking permits and increase costs. They would need to get U.S. approval to dig out new basements, repair bridges or dispose of waste, they say.

Unsafe Rivers

Redefining the government’s reach “is part of the problem,” and an example of the “uncertainty out there,” Bill Kovacs, senior vice president of the U.S. Chamber of Commerce, said in an interview.

About one-third of American rivers and lakes aren’t healthful for swimming or fishing, according to the EPA. The added enforcement would help “ensure a safe supply for drinking, irrigation and livestock watering,” Nancy Stoner, the agency’s acting assistant administrator for water, said in a Sept. 23 e-mail.

For decades, government officials and businesses have disputed the meaning of one phrase -- the “waters of the United States” -- in the 1972 anti-pollution law.

The two agencies, which are jointly responsible for enforcement, unveiled an interpretation in April that lets them oversee wet patches linked to larger bodies, such as the Chesapeake Bay, whether or not connections are visible on the surface.

300,000 Comments

The authority would “help restore protection to our waters” and “provide clearer, more predictable guidelines,” EPA Administrator Lisa Jackson said in an April 27 statement.

The proposal prompted 300,000 comments, more than any change in the Clean Water Act’s 39 years, according to the EPA. While most of those were organized by environmental groups who are supportive, according to a compilation published on the government website Regulations.gov, the Republican-led U.S. House of Representatives is trying to kill the effort through the budget process.

The water plan would be prevented under an appropriations bill passed July 15 by the House. The Senate would need to approve the measure before it could be sent to President Barack Obama.

The lawmakers’ action is consistent with a broader Republican attempt to restrain the EPA. On Sept. 23, the House adopted legislation to kill two pending air-pollution rules and delay a dozen more while their effect on the economy is studied.

Supreme Court

The guidelines would add less than 3 percent to the area under Clean Water Act jurisdiction, the EPA said in an analysis published on its website. Increased oversight would cost government and industry about $171 million, while resulting in benefits of $162 million to $368 million, according to an EPA report.

In 2006, the U.S. Supreme Court ordered a new round of hearings for Michigan landowners whose efforts to build on their property had been stymied by the Corps. In the case, Rapanos v. U.S., Justice Anthony Kennedy said the government could regulate waters with a “significant nexus” to major waterways. Justice Antonin Scalia, who joined the majority in the decision, called that reasoning “opaque.”

“The Supreme Court confused the issue,” Jon Devine, senior attorney at the Natural Resources Defense Council in Washington, said in an interview. The EPA is now “trying to bring some clarity into the realm where lawyers like me are arguing.”

Bridges, Culverts

That plan amounts to a longer reach for the government, companies such as steelmaker Nucor Corp. and oil producer Chesapeake Energy Corp. (CHK) said in comments filed with the EPA.

The proposed guidelines “create a regulatory environment in which it would be difficult to find a tributary or wetland water even a hundred miles away from a navigable water” that would escape government oversight, according to unsigned comments submitted in July by Omaha, Nebraska-based Union Pacific Corp. (UNP)

Applying for permits would slow or prevent repair and inspection of the railroad’s 20,000 bridges, 100,000 culverts and its dikes, levees and access roads, Union Pacific said.

Agriculture has led the opposition, with state farm bureaus organizing write-in campaigns against the rules.

According to the American Farm Bureau Federation, a 48- square mile area in Kentucky contained 40 miles of permanent streams. The bureau said the EPA and Corps proposal would bring an additional 360 miles of so-called ephemeral waters, which are dry except when snow melts or heavy rains fall, under U.S. purview.

All Tied Up

“You go from being able to do some economic activity, to having all economic activity tied up,” Don Parrish, senior director for regulatory relations at the Washington-based farm trade group, said in an interview. “It’s huge and it’s broad.”

The permit process may cost up to $30,000, Parrish said.

The new guidelines wouldn’t change any longstanding exemptions, such as ornamental ponds, Stoner said.

To reassure critics, the EPA also published a bulletin saying it won’t target “normal, ongoing” farming or ranching.

That wouldn’t have helped Watkins, who was changing the use of his land. He’d been grazing cows on the tract where he wanted to capitalize on rising feed prices by expanding his crops. He turned a separate pasture into a walnut grove.

Watkins, first vice president of the California Farm Bureau Federation, said he hired consultants to avoid violating any rules on his farm 12 miles from Stockton.

Aerial Photos

For his troubles, his family got a “cease and desist” notice from the Corps’ California Delta Branch.

The Corps used aerial photos to trace the discharge of pooled water on Watkins’s field to a slough that feeds the river. Because of the linkage, the U.S. had the right to stop plowing, which could ruin the ponds and hurt the salamanders and fairy shrimp that live there, according to Krystel Bell, project manager in the agency’s Sacramento district.

Bell said Watkins refused permission for an on-site inspection. “We were willing to explore” allowing the hayfield and orchard, she said in an interview.

Watkins gave up on the oats, barley and rye grass he wanted to raise for grain hay. He said he’s kept the walnut trees and hopes the Corps will take him to court -- so he can challenge its orders.

While he waits for his chance at a trial, he said he is forgoing $70,000 a year in sales and worrying that the plans in Washington could give the government more sway over his 2,000- acre farm.

The federal officials “want to increase their empire,” Watkins said. “That’s what their ambitions are.”