Farmers Union blesses EPA Clean Water Act definitions

"Upland" agriculture operations such as this hay field near Laird, Neb., are exempted from regulation under the Clean Water Act, and proposed new definitions of "waters of the United States" would not change that. Photo July 2014/Allen Best

“Upland” agriculture operations such as this hay field near Laird, Neb., are exempted from regulation under the Clean Water Act, and proposed new definitions of “waters of the United States” would not change that. Photo July 2014/Allen Best

EPA grab for water power ? Not so, says Rocky Mountain Farmers Union

by Allen Best

The Environmental Protection Agency proposes to tidy up currently ambiguous definitions of what waters are covered under the Clean Water Act. There’s some pushback in the hinterland from the American Farm Bureau, which usually aligns with Republicans, and others.

“Opponents say the rules are a power grab that could stifle economic growth and intrude on property owners’ rights,” reported the New York Times in a March story.

In Colorado, U.S. Rep. Scott Tipton told the Durango Herald in September that it was a “water grab” by the EPA. “This is straightforward: You either want to protect the private-property rights of water in Colorado and protect our state law or you don’t,” Tipton said.

The Farmers Union doesn’t see it that way. It traditionally aligns with Democrats and stronger environmental protections. This is no exception. To that end, the Rocky Mountain Farmers Union on Thursday morning held a session in Denver designed to both provide explanation from the EPA and to affirm more broadly the support of the Farmers Union for the role of the federal government in ensuring clean water.

Bill Midcap, director of external affairs for RMFU, set the tone in his introduction. He noted that when growing up north of Fort Morgan, he had learned to swim in the Riverside ditch that served his family farm. In that same ditch, he taught his children how to swim, he said.

He went on to say that he wouldn’t go swimming in the ditch now. The connection to the EPA proposed new rules wasn’t clear, although the insinuation was that water quality has worsened—and needs corrective action.

Further testimony came from Alphonso Abeyta, who is 76 and is a fifth-generation farmer and rancher in the San Luis Valley. He’s southwest of Antonito at about 8,000 feet in elevation, he said.

He told several stories about water quality. One was a plan by the U.S. Department of Energy to transfer contaminated soil from the Los Alamos National Energy Laboratory onto a train siding at Antonio, just 100 feet from a tributary to the Rio Grande. It took some backbone, but the locals blocked the transfer and the risk of contamination water.

“Well, we stopped the Department of Energy from shipping waste from our little town,” he said.

But in another case, the locals got stung – and they’re still stung. That’s a result of the famous Summitville mining fiasco in the 1980s, which resulted in costly pollution of the Alamosa River.

“How can we have organic food when we use water that killed all those fish?” he asked. “Today, we still don’t have fish in that stream. That’s where life begins, at the headwaters.”

If none of these stories spoke directly to the proposed regulations, the background message was again clear: Protecting water quality is important.

The RMFU position is clearly articulated as “common-sense guidance” that “protects clean water for our farms and families, and provides greater certainty for landowners.”

The Clean Water Act is complex and comprehensive, as one speaker described it. Adopted by Congress in 1972 and signed into law by President Richard Nixon, it took several years for the the EPA to formulate the rules and regulations to execute Congressional intent.

Shaun McGrath, the administrator of the six-states EPA region headquartered in Denver, said that the EPA analyzed more than 1,000 scientific studies in creating the proposed rules. The public comment period ends Nov. 14.

The fundamental problem is that the original rules left some questions of what waters are covered by the Clean Water Act. The EPA concluded in the 1970s that Congress intended a broad definition of what “waters of the United States” were to be covered under the law, and courts have upheld this broad definition. But there were some areas of lingering uncertainty, and the U.S. Supreme Court has muddled the waters with its decisions.

One key area of uncertainty is what exactly constitutes “uplands,” which are undefined in current rules, and what water located above ordinary high-water mark for a river or stream would be covered.

In a detailed explanation of the existing and proposed rules, the EPA’s Karen Hamilton emphasized that the proposed rules would not expand areas to be covered to include floodplains and riparian areas.

However, ponds located above the ordinary high-water mark would be specifically come under the jurisdiction of the Clean Water Act under the new rules.

Groundwater would remain exempt, although the current rules recognize some connection between groundwater and flows of navigable rivers.  See much, much more at the EPA website.

An old and abandoned adobe house near where Alfonso Abeyta farms and ranchers in the San Luis Valley. 2005 photo/Allen Best

An old and abandoned adobe house near where Alfonso Abeyta farms and ranchers in the San Luis Valley. 2005 photo/Allen Best

A dozen or so farmers and ranchers were at the meeting, coming from diverse parts of the Eastern Slope. The questions they asked suggested agreement with Midcap’s opening statement that, if anything, the EPA doesn’t go far enough in ensuring clean water.

One question revealed a fundamental mistrust of chemicals used in hydraulic fracturing. The proposed rules do not venture into fracking.

Abeyeta, in a video produced by RMFU, summarized the story well. “Farmers know that everything is connected,” he said. “Snow from the mountains feed the streams, the streams feed the rivers, the rivers feed us. You can’t grow food without water. You can’t live without water.”

For a more in-depth sorting out of the issues, the EPA goes very, very deep. The Durango Herald story is modestly deep, as is a story from High Country News in June. But for a Republican perspective see the essay by U.S. Sen. David Vitter of Louisiana. In this posting on The Hill, he calls the proposed rules the “granddaddy of EPA abuse of the Clean Water Act.” However, the Los Angeles Times thought the rules sensible.

Footnotes: This correspondent’s grandparents lived along the Riverside Ditch north of Fort Morgan, maybe two miles from where Midcap grew up and farmed. Abeyeta’s son, Aaron, is a modestly famous poet who just released a new book called “Letters from the Headwaters.” Aaron Abeyeta is also the mayor of Antonito and the high school football coach.

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About Allen Best

Allen Best is a Colorado-based journalist. He publishes a subscription-based e-zine called Mountain Town News, portions of which are published on the website of the same name, and also writes for a variety of newspapers and magazines.
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