Why farmers are concerned about EPA’s new rules on protected water

The EPA and the Army Corps of Engineers have finalized new rules about what kinds of waterways are protected under the Clean Water Act, adding the smaller streams, tributaries and wetlands that feed drinking water for some Americans. Political editor Lisa Desjardins reports on what the shift means, and why it’s drawn both praise and criticism.

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  • Editor’s note:

    The new rules regarding America's waterways were issued jointly by Environmental Protection Agency and the Army Corps of Engineers.

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    This week, the United States changed the way it looks at one our most precious resources, water. The Environmental Protection Agency finalized a new rule about what kinds of waterways it protects, to include things like tributaries.

    The change has brought both applause and sharp criticism.

    Our political editor, Lisa Desjardins, reports on what this shift means.

  • SEAN O’BYRNE, Owner, Great Waters Brew Pub:

    What can I get you guys?


    Sean O'Byrne owns the Great Waters Brew Pub in downtown Saint Paul, and the main ingredient in the beer he crafts is local well water.

    For the past several years, a kind of fear has mounted for him, that some of the protections initially offered by the 1972 Clean Water Act have eroded, putting Minnesota's great waters at risk.


    I'm a little scared at what people are trying to do to it, take some of the teeth out of it.


    That's why he's cheering the new rule finalized this week by the Environmental Protection Agency, a rule meant to clarify which bodies of water can be regulated by the federal government.

  • EPA Administrator Gina McCarthy:

  • GINA MCCARTHY, Administrator, Environmental Protection Agency:

    We crafted these rules because we have a statue that's over 40 years old and nobody yet has defined its jurisdiction well. We know we're seeing waters that are extremely important being degraded or polluted while we sit and think about it.


    McCarthy says some 60 percent of all streams, tributaries and wetlands in this country were not specifically safeguarded before. Under this rule, they will be.


    One hundred and seventeen million people rely on those streams that are now tenuously protected or not. And we need to define a strategy to protect them, because people rely on them for drinking water.

  • KEVIN PAAP, Farmer:

    This would be an example of the soybean field.


    But not everyone is cheering the EPA's action. Kevin Paap farms soybeans and corn on this fourth-generation farm located 90 minutes west of the Twin Cities. He fears the new rule means that some of his irrigation ditches, necessary to drain extra water off his fields, will suddenly be regulated.


    This has got water in it, water running today because we had an inch and nine-hundredths yesterday during the day. So the system is working. It's taking that excess water out. If this ditch gets classified as water of the U.S., will I require a permit? As we put on our crop protection products, as we deal with replacing nutrients that the crops takes up, I don't want to have to get a permit if all of a sudden I find a pest out there or a weed outbreak.


    But ask the EPA about current farming, and the agency insists it won't be affected.


    It's tributaries only. Now there are some ditches that were constructed in a tributary or that have frequent enough flow duration and volume to create these features. They're called tributaries, not ditches.


    But a farmer might call that a ditch. To a farmer, that's an irrigation ditch.


    The farmers will know very clearly here we are clearly explaining that irrigation ditches are not included. We have clearly said in the rule and beyond this rule adds absolutely no new regulatory or permitting issue for agriculture whatsoever.


    Farmer Paap isn't convinced. He thinks this is nothing more than a power grab by a federal agency.


    We're happy with the Clean Water Act as it was put together in 1972, where it gives that authority to the states. Navigable waters have to be federally regulated because of commerce and things like that.

    State waters, whether it's a wetland, whether it's an area where there is water in it only a few days the month or days of the year, that's really the state's role, the state's responsibility. We don't want to see another layer on top. We don't need two levels of bureaucracy to do the same thing.

    JILL BATHKE, MN Center for Environmental Advocacy: Phosphorus and nitrogen are a big problem in Minnesota waterways, and a lot of it comes from agricultural pollution. It also comes from urban development.


    Environmentalist Jill Bathke says state laws do not provide enough protection, and, if anything, the new EPA rule doesn't go far enough either.


    There are parts of Minnesota where a vast majority of waters are not fishable, swimmable, and drinkable. There are a lot of contaminants in our fish. And there's a lot of problems with sediment in our waterways. So, there's a lot of issues with pollution in Minnesota. And there are going to be difficult problems and they are not going to be fully solved by this rule's release. But it is a step in the right direction towards more clarity.


    Getting more clarity was what many developers and county officials had hoped for.

    Al Forsberg is the director of public works for Blue Earth County in Minnesota. He says confusion over jurisdiction has led to costly delays in past road construction projects.

  • AL FORSBERG, Director, Blue Earth County Public Works:

    These pink flags delineate where a wetland is located.


    Forsberg is about to embark on a $20 million road construction project which will extend into the ditches and wetlands that currently line both sides of the existing road.


    We need a clear concise rule so that when folks doing maintenance on roads, constructing roads encounter low areas, they can determine, is this a water of the United States or not?


    He was sharply critical of the draft proposal the EPA put forward a year ago. The county official says the version that was released this week is better. Still, he worries about a one-size-fits-all plan to govern so many different types of waterways.


    To define a water of the United States here is a different chore than defining it in, say, Louisiana with the bayous or the salt marshes out east, Alaska, Hawaii. That's one of the problems in putting together one definition.

    I think a map would solve that. Have the local folks, the state folks and the federal folks work together to develop a map for Minnesota. Then, when we're planning our construction projects, we can go to this map. These are the waters of the United States. This is where we need to apply for permits.


    Many in Congress have said the EPA didn't give enough consideration to farming and construction interests. Three weeks ago, the House voted to block the rule.

    Democrat Tim Walz, who represents southeastern Minnesota, supported that bill. His district contains the ninth most productive farmland in the nation. He said this week's rule is better than the one initially drafted, but is still not perfect.

    REP. TIM WALZ, (D) Minnesota: We can't have poisoned rivers, but we also have to be able to feed the population. So, we must fix this. If we do not fix this and we continue to have water quality issues, we're going to lose. That's going to impact production, it's going to impact health, it's going to impact all those things.

    If we make rules that impede people's ability to grow food, we're going to deal with that side of this issue. And so this is one of those that it's not my side wins, your side loses. We both have to win.


    The new EPA water rule will go into effect later this summer.

    For the PBS NewsHour, I'm Lisa Desjardins.

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