I spent 30 years with the U.S. Fish and Wildlife Service as an aquatic biologist working in the Clean Water Act regulatory program. My career began just two years after the Clean Water Act was passed in 1972. For the next 31 years, the law provided federal protection to all the waters of the United States. However, in 2003 and 2008, the Bush administration changed the regulations (through informal guidance), which reduced federal protection for headwater streams and adjacent wetlands.
The EPA’s and Corps of Engineers’ proposed new rule does only one thing; it restores federal protection to waters of the United States that had been taken away by the Bush administration’s action.
Contrary to the Pennsylvania Farm Bureau’s allegations, the EPA’s rule does not regulate land use activity around small streams and creeks, does not regulate ditches that carry water only when it rains, does not regulate the application of fertilizer to farm fields, does not require a permit for farming activities in areas that are now and have been farmed,and does not require a permit for new farms.
The fact is, if you are not attempting to drain or fill a wetland in order to farm it, this rule does not change anything that had not been in place in the 31-year period from 1972 to 2003. If you are farming an area, and have been farming it, or are beginning to farm an area, and are not attempting to convert a wetland or a stream to another use, then this rule does not apply to your work.
In my career, we rarely encountered real farmers, but it wasn’t uncommon to encounter developers who were dressed as farmers, attempting to convert wetlands to dry land, ostensibly to farm, when their real intent was to drain a wetland so it could be sold for development. Real farmers know putting seed in permanently wet soil just wastes money, not to mention the problem of having to pull their tractors out of the mud.
The Farm Bureau asserts that Congress only wanted navigable waters regulated, that is, those waters that carried interstate commerce. However, when Congress passed the Clean Water Act in 1972, it defined navigable waters as “waters of the United States” and explained in the conference report that “…the term “navigable waters” was to be given the broadest constitutional interpretation unencumbered by agency determinations, which have been made, or may be made, for administrative purposes.”
I was born and raised overlooking the steel mills in Cleveland, Ohio, about a quarter mile from where the Cuyahoga River caught on fire in 1969. So I know something about poor water quality. When I was growing up, Lake Erie was declared dead, and the nation was in an uproar because our waters were so polluted.
The public demanded action, and with overwhelming bipartisan support, Congress acted. Despite all the development, we have some of the highest water quality of any developed country. We learned that regulating pollution discharges into navigable waters was not enough because most pollution emanated from headwaters and was carried downstream.
But that is exactly what the 2003 and 2008 changes in the regulations have done. They have opened up millions of acres of wetlands and thousands of miles of headwater streams for development. These headwater systems are the foundation of our nation’s fish and wildlife resources, and provide clean drinking water to more than one-third of Americans. So why on earth is the Farm Bureau advocating that we go back to the bad old days?