Thursday, July 02, 2015

What am I missing?...

OK, I am obviously clueless about the impact of the CWA WOTUS ruling. The ag community is apoplectic about its "overreaching" and "land grabbing". But time and again, when I ask what does this mean in how I farm...I get nothing.

Incidentally, there seems to be a common script with required phrases when expressing your outrage. Note these examples:
Blake Hurst, President of the Missouri farm Bureau, publicly applauded Koster’s suit.“We applaud Attorney General Koster for filing this lawsuit against EPA and hope the courts will act quickly to halt implementation of the WOTUS rule as the issue works its way through the legal system.  The EPA is guilty of a massive overreach, and we fully expect the courts will once again instruct the EPA to follow the intent of Congress.” [More]
Stenehjem, a Republican, said the rule usurps state authority over broad swaths of water, subjecting landowners to federal red tape, additional permit requirements and costly permit delays, and steep penalties and possible jail time for noncompliance.“This federal power grab is unnecessary and unlawful and will do nothing to increase water quality in our state,” he said. [More]
The claim is that the rule would extend the EPA and Corps regulatory reach tremendously by allowing regulation under the Clean Water Act of areas where water is found only a few months out of year such as roadside ditches and field waterways as well as regulation of small bodies of water including farm ponds. The claim also is that any work by farmers that might alter water flow on their property in any manner might be subject to extensive paperwork for permitting.The EPA claims the rule was issued to bring clarity to the terminology and specifics of where the Clean Water Act pertains, including private property. But those state officials filing suit on behalf of their constituencies see the rule as a tremendous overreach of authority by the EPA. The rule has not gone into force yet, and the lawsuits are asking for it to be declared illegal and or an injunction against it ever going into effect in its current form. [More]

OK, the last account suggests that if I alter water flow on my farm I'll need to get a permit. That is one of the few specifics I have ever seen in the debate. I'll point out the EPA says that's not true, but the common reply is "The EPA is lying. "

What if, for the purposes of argument, I just stipulate all these dire predictions are true.  What does the WOTUS APOCALYPSE look like? Is there a fear that the EPA will dictate how much we can spray and apply and when and how? How would that work? Who would enforce it?

The most frequent semi-answer is "we'll have to get permits".  But as I understand it, that's true only if you are going to do something bad that could end up in water that leaves your property
Agriculture groups raised important questions about what it means for waters to be “covered” under the Clean Water Act. The Act requires a permit if a protected water is going to be polluted or destroyed, however, agricultural activities like planting, harvesting, and moving livestock across a stream have long been excluded from permitting, and that won’t change under the rule. In other words, farmers and ranchers won’t need a permit for normal agricultural activities that happen in and around those waters. [Same] [My emphasis]
Lost in all the hand-wringing is the idea of clean water. That's the point we're missing. If you aren't polluting, you're not a target, it seems to me.

The idea of leaving it up to states to handle has its own problems. Budgets for one. And what do you do if the state upstream has more lax rules than your state? The idea of 50 little EPA's making 50 sets of rules doesn't seem like a good thing to me. Besides, if we're going to get paid to comply, which we will insist on and probably get, we'd better tap into the federal jugular, not say, the Kansas fiasco.

The EPA budget is almost entirely consumed with responding to lawsuits. There is no enforcement legion to patrol the backroads and strip-search farmers planting corn. If we do have to have permits to spray everything because of ditches (remember, EPA lies) how would we get them? Can the EPA even begin to handle that admin load? I doubt it.

So all farming comes to a halt while we stand in line for permits. Since this is the case constantly being predicted by opponents, a strategy springs to mind:
  1. Get long everything.
  2. Don't sell anything from now until then.
  3. Get good at getting permits. (Huge rewards to people who can handle bureaucracy, just like crop insurance or PIK certs)
  4. Rent ground away from those guys in DC picketing. (Just kidding, of course, but if such a world is inevitable, bitter-enders will be subject to replacement by early collaborators)
I exaggerate, of course. A lot. But the Doomsday scenarios seem to be suggesting this. The question is why. I offer these guesses.

First, we know this is about stuff we put in the water: N, P, and pesticides are too high even following current rules and prudent practices. There is no "land being grabbed", there is something even worse: owner/operator responsibility for what leaves our farm in the water. I think one unspoken motive here is to make sure no blame can be tracked back to me. This may seem like a good defense, but doesn't that simply leave control measures that treats good actors and bad alike? Without further delineation, probably it will be done by waters that the EPA clearly does have jurisdiction over, like the Mississippi River, and hence the whole watershed. Imagine the ruling is overturned/negated somehow, and the EPA simply says to the states, "The water flowing out of your Miss. River boundary has too much X. Take measures to drop it 50% or the AG will call you."

Second, I think there is an visceral fear that the EPA wants us all to be bucolic, organic small farmers. OK, again let's imagine this is the real hidden agenda. How we get there? If they stipulate no chemicals, less fertilizer, etc. our grain production plummets. While I can't imagine this kind of economic disruption is even faintly possible, there is an uneasiness because we know much of the public really wants cute farmers growing food. It irritates us so much we spend mucho time and dollars educating them how mistaken they are. Still, we are constantly reminded the longing for agrarian production is persistent and widespread among consumers. Totally, overlooked, IMHO, is what is the EPA just wants the water to be cleaner - not pristine - just better. Why shoot for impossible domination when you really want less stuff in the water? These imaginings are politically-fed paranoid fantasies that have tapped into a deep resentment that folks don't love us like they did when we were all labor and 4-crop rotations.

Third, deep, deep down, we know our current path is not good. All corn all the time is great for suppliers and users, but probably not as sustainable as we thought a few years ago. In fact, it appears to me, only by offloading our economic externalities downstream can we force land to produce at the 300 bpa levels we think is our goal. Our outraged response to being called to responsibility for what we do to water leaving our land is maybe a way to take our mind off the truth that we wouldn't want to be downstream of us either.

All of these scenarios are unsupported by any shred of feasibility or evidence. The agpocalyptic future being touted is laughably impracticable, politically unthinkable, and economically nonsensical. The worst/best the EPA might be able to do is begin to add some burden of accountability to the most egregious water pollution actions.

Most of the fears are slippery-slope arguments carried to ludicrous extremes as I have done. But those extremes are as far as I can see, counterproductive to the supposed EPA purpose (clean water, remember?). At any rate, these underlying anxieties need to be articulated, instead of simply ominously hinted. The fact they are not only reinforces my conviction ag simply will always  and automatically oppose any EPA action, making up reasons to do so in the face of contradictory facts.

[Ethanol mandates excepted, of course]

Like I said at the beginning, maybe there is a detailed explanation of how my life will change as a farmer because of the WOTUS rule. But all I can find are hints and innuendo, so I've tried to create some possibles to ponder.  Let me know what you think the end result might be.  After all, SCOTUS could uphold it.


Chuck said...

Spot on, John.

Anonymous said...

I think installing drainage tile will be regulated more. Instead of the little pot hole in the north 80 called a "wetland", it will be the whole north 80.If we can get on board(or at least "act like it")the cover crop and the voluntary nutrient management practices, perhaps we can do it on our own. If its an early harvest and a dry year, put out some cover crops, then put it in the paper. How about a Headline "Farmers Pledge to side dress 1/3rd of corn acres in Central Illinois" to help with the problem. Put a positive spin on it, instead of screw this regulation crap. BTW, side dressing like other things barely got done or maybe didn't this spring (yet?). It may be risky to be "sustainable".

Steve A. said...


Your argument is simplistic, but misleading. This is always the rallying cry of regulators. "The compliance burden is light, and you will be protected. Besides, the regulation is for the good of all". Tell that to the power plants that have been shut down due to EPA redefining CO2 as a pollutant, as a political determination and not science. That was unimaginable and I foreseeable when the CAA was enacted.

Now you have regulatory stretch to change the CWA from covering point sources in 'navigable waters' broadened with 'significant nexus' to all sorts of tributaries, etc. Again, this is stretching the intent of the original legislation.

I think EPA has one of the most effective and impressive stories of my government agency ever - tied with NASA. But the drive for more control to accomplish the mission (protect human health and the environment) leads Them to first quietly publish and fight to defend rules that broaden their oversight - then move later, when the political climate is more favorable, to enact regulations that are unforeseeable.

With this grab, I can absolutely see EPA indirectly pressuring NMP's, as in the Chesapeake Bay Area, nationwide. That will have a cost that affects how I farm.

EPA has already pushes pesticide applicators to apply for an NPDES permit. Ask the cattle guys how that progressed for them

To summarize, this rule is an attempt to broaden EPA's authority and will lead to increased compliance burden. That is hard on smaller farms but gives bigger farms a competitive advantage. More barriers to small business.

Etc etc. I've gotta run.

Alain Bernard said...

The Clean Water Rule protects streams and wetlands that we depend on for our health, communities, and economy.