Routine maintenance work like shoveling dirt into a water-filled ditch that flows into a stream could soon become a costly violation without a acquiring a federal permit.
If proposed change to the Clean Water Act is approved, the Environmental Protection Agency would have the authority to protect from pollution almost any wet area on private land. The controversial change, which has been lambasted by government leaders and farm groups, would allow the federal agency to regulate all waters of the U.S by removing the phrase navigable waters from the law.
Established in 1972, the CWA now allows the government to regulate the discharge of any pollutant including sand or dirt that have significant nexus to navigable waters. The definition of navigable waters includes all interstate waters, along with intrastate lakes, rivers and streams used by interstate travelers for recreation or other purposes.
But the revised guidance document announced by the Obama Administration Aug. 27 will would greatly expand that definition by including a range of other waters formerly not regulated. According to the proposal, the destruction of the following wet areas that could impact navigable waters would be regulated by the EPA and Army Corps of Engineers: wetlands, mudflats, sandflats, sloughs, prairie potholes, wet meadows, natural ponds and playa lakes. Wetlands located adjacent to the listed waters would also be included.
Those wet areas wouldnt need a tributary or stream linking to a navigable water according to the law, but only a hydrological connection between the groundwater and streamwater.
But will the extra redtape to protect wet areas do more harm than good? A statement on the EPA website claimed the retooled law is focused on protection of smaller waters that feed into larger ones to keep downstream water safe from upstream pollutants, (and) protection for wetlands that filter pollution, store water and help keep communities safe from floods. It would keep safe the streams and wetlands that affect the quality of water used for drinking, swimming, fishing, farming, manufacturing and tourism.
While the government may be well-intentioned, farm groups and government leaders in northern New York are infuriated by the proposal to expand the EPAs jurisdiction. The New York Farm Bureau has the policy change, which could deem roadside ditches, farm ponds, culverts, seasonal streams and temporary wet spots as waters of the U.S. safeguarded by the Clean Water Act, said Steven Ammerman, manager of public affairs. To complete maintenance work on such land, residents, farmers and municipalities would need to pay for costly federal permits under the law, he said. The law could apply to any wet area that has water in it for more than for hours during the year.
And because the EPA is revising the federal law through policy guidance, it can skip the normal federal rulemaking process that would allow groups to oppose it at public meetings. So far, five counties in New York State have passed resolutions opposing the law in an effort led by the farm bureau; in the north country, legislatures in Jefferson and Lewis counties are set to pass resolutions at meetings in this month.
Theres no approval or public hearing process to pass this, Mr. Ammerman said. We dont believe its proper authority. People would face civil and criminal penalties by just doing routine maintenance in a ditch to fight soil erosion. You may have to get a general federal use permit to get anything changed, and those can take up to a year to approve and cost anywhere from $35,000 to $100,000.
The policy change might not only impact farmers seeking to till wet areas on their land. It could also affect municipalities whose highway departments routinely do work on roadside ditches and storm-water drains.
, said Mr. Ammerman, who called the EPAs plan out of touch.
Government leaders are fearful this is going to be costly, because there are a lot of ambiguities, he said. It might not mean the EPA will go after every ditch maintenance project, but it would have that option.
The law also differs with two Supreme Court rulings centered on the definition of navigable waters entitled to federal protection. In both cases, the court ruled in favor of landowners seeking to fill wetlands for projects.
Mr. Ammerman said only U.S. Congress has the authority to thwart the law. Thats farm bureau is making a push for people to talk to their representatives and senators to make it a priority.
Michael B. Kiechle, president of the Jefferson County Farm Bureau, spoke with Jefferson County legislators on planning and development committee in August to approve the resolution against the federal policy. Legislators unanimously approved a resolution to oppose the policy, which the Board of Legislators is set to OK Sept. 4.
This law could become a nightmare, said the dairy farmer from Philadelphia. If I had to apply for a permit every time I worked in a field or the town highway department had to get a permit to work on a roadside ditch, theres no way we could operate. Logistically, there isnt enough personnel to enforce or monitor such a law.
Legislator Barry M. Ormsby, R-Belleville, speaks with farmers often about their concerns in his day job as a sales representative for Walldroff Farm Equipment in Watertown. He called the law a prime example of the senseless regulation that would hamper the agriculture industry and local governments in the north country.
Farmers here are more than willing to comply with regulations (that have value), but the government cannot continue to permit them to death, he said. To add more stringent rules when these people are already following so many regulations for land with water standing for four hours annually will overload the system without a clear justification. They cant keep moving the target and tightening the requirements for farmers that have work to do.
The law could also cause headaches homeowners who have small streams or ditches on their properties, said Jay M. Matteson, agricultural coordinator for Jefferson County.
I have a small stream that flows through my yard into a creek, and if I wanted to build a swing set there for my children I would have to get a federal permit to do it, he said. And if I fill in the land because I dont know about the law, a neighbor across the road could call the DEC, which could then call the feds about a water violation.
Because the law is so murky, Mr. Matteson contended, most wet areas in Jefferson County could be legally protected.
The whole county is in the watershed of Lake Ontario and the St. Lawrence River, he said. And the law says only a biological or chemical connection (to naviable waters) is needed. Its a very ambiguous connection that doesnt provide a finite definition to whats regulated and not.
To view the guidance plan, visit http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm.