Fresh crop of water rules worries farmers

DETROIT — Proposed revisions to water regulations by the U.S. Environmental Protection Agency and Army Corps of Engineers have Michigan farmers wondering whether they’ll eventually be harvesting more bureaucracy, delays and costs than crops.

The EPA-Army Corps proposal would modify the federal Clean Water Act to more clearly define what constitutes “waters of the United States” subject to federal regulation. It comes after Supreme Court rulings in 2001 and 2006, and subsequent interpretations of the law, led to a general narrowing to protect only “navigable waters” and the “relatively permanent waters” that connect them, leaving wetlands, small ponds and similar water bodies in a gray area.

And that’s the rub for Michigan farmers: While the EPA has emphasized dozens of exclusions for agricultural activities, it would still impose a major burden — possibly requiring federal permits — to modify a farm’s drainage ditches “that are dry 11 months of the year,” said Laura Campbell, manager of the agricultural ecology department for the Michigan Farm Bureau.

“The EPA has identified some classes of ditches that would not be regulated — those that exist entirely in upland areas, or that don’t connect to any downstream water body,” Campbell said. “I’m not aware of any ditches in Michigan where that would apply.”

“It’s the additional paperwork, cost and time,” said Doug Darling, who farms corn, soybeans and wheat on 1,400 acres in Monroe County’s London Township.

Michigan is one of two U.S. states granted federal authority to regulate wetlands under the federal Clean Water Act’s Section 404 — New Jersey is the other. Darling noted that Michigan Department of Environmental Quality regulatory requirements often include deadlines requiring permit rulings within 90 to 180 days.

However, “the EPA does not have any type of time line whatsoever,” he said. And in farming, time is money.

“If we can’t manage our water and do it timely, it becomes a major problem we can’t recover from,” Darling said.

DEQ Director Dan Wyant also criticized the proposed federal changes, saying that instead of clarifying the rules they add “greater uncertainty.”

“We feel our wetlands program gives greater certainty to the regulated community,” he said.

Although Michigan’s program is based on a water body’s size and includes setback requirements, the proposed federal change would require more DEQ staff making on-site determinations case by case, Wyant said.

“It’s going to require more permitting, slow business down and cost more time and expense to business owners; there’s just no doubt about that,” he said.

However, EPA officials in the state don’t agree.

“Providing better environmental protection to the waters that are protected, and more clearly clarifying which waters are not, will save people time and money,” said Nancy Stoner, acting assistant administrator of the EPA’s office of water.

Stoner said the proposed rule does not bring in additional water bodies that were not previously covered before the two Supreme Court cases.

“We actually think the proposed rule would reduce, not expand, jurisdictional rules over ditches,” she said.

The Michigan Environmental Council supports the proposed federal water rules change. Council policy director James Clift said revisions to Michigan’s wetlands regulations last year were “a step in the wrong direction.”

Federal and state law applies if there is a significant connection between a water body such as a wetland, pond or ditch and a navigable waterway, Clift noted.

“The truth is, in Michigan, there is virtually always that connection,” he said.

Where state law traditionally has presumed a connection if the water body was a set distance from a navigable waterway, last year’s changes now allow an applicant to ask the DEQ for a determination, Clift said.

“You’re talking about tens of thousands of dollars of drilling wells and doing hydrological studies,” he said. “That’s not worth it. You don’t want your department spending that time and that significant waste of government resources, trying to establish that.”

The federal proposal makes it very clear what’s allowed behavior by the farmers, Clift said.

“We think it actually provides more clarity for the ag community,” he said.

Republican state Sen. Tom Casperson disagrees. He introduced a pair of resolutions last month to call on the EPA and Army Corps to withdraw their proposed expansion of water .

“The EPA continues their disregard for private property and states’ rights by writing rules that go well above and beyond their authority under the Clean Water Act,” said Casperson. It and similar actions, particularly at the federal level, are an effort to implement agendas “which are typically the same as environmental organizations seeking to limit private property rights and use of our natural resources.”

Fresh crop of water rules worries farmers