Climate

A Controversial EPA Rule Is Pitting Small Farmers Against Big Agribusiness

CREDIT: RMFU/John Gilbert/Dylan Petrohilos

In May, when the EPA released its final version of the Clean Water Rule — meant to clarify which waters are under the jurisdiction of the Clean Water Act — the agency cheered the broad reach of the rule, arguing that it would protect the drinking water of some 117 million Americans, or roughly a third of the population.

But when Sen. Joni Ernst (R-IA) introduced a resolution to kill the EPA’s Clean Water Rule back in November, she seemed especially concerned with the rule’s impact on a single group in particular: farmers and ranchers, who comprise just two percent of the population.

“I spent the weekend going back through letters my fellow Iowans have sent me on this issue,” Ernst said on the floor of the Senate. “And so many of them are frustrated with the lack of common sense coming out of Washington. They are taking this issue personally because their livelihood depends on it.”

On Wednesday, the House voted 252-166 to pass Ernst’s resolution. It now goes to President Obama for approval, though the White House has long insisted that it will veto any attempt to overturn the rule.

As a representative of a state with the third-highest number of farms and second-highest total farm sales in the country, it makes sense that Ernst would want to look out for the interests of farmers when it comes to policy. But Ernst isn’t the only politician singling out farmers as particularly hurt by the rule — legislators on both sides of the aisle have trotted out farmers as the group that would be most burdened if the rule is allowed to go forward.

The American Farm Bureau — the country’s largest farm lobby — has also vehemently opposed the rule, launching a campaign to block it long before the finalized version hit the federal register. Once the final rule was announced, the Farm Bureau launched another campaign, titled “Ditch the Rule,” meant to drum up public opposition to the rule. In his final speech given at the American Farm Bureau Annual Convention earlier this week, outgoing president Bob Stallman called the Clean Water Rule “one of the worst examples of overregulation,” and promised that the Farm Bureau would continue to fight the rule both in the courts and in the halls of Congress.

John Gilbert, Iowa farmer.

John Gilbert, Iowa farmer.

CREDIT: John Gilbert

But despite the chorus of opposition from legislators and lobbying groups, not all farmers are opposed to the EPA’s rule.

“If we don’t have clean water, we don’t have clean food,” John Gilbert, a livestock producer from Iowa, told ThinkProgress. “Our centerpiece is dairy, and there is nothing more pure or wholesome than dairy products. Dairy cows drink a lot of water — it’s really their biggest input.”

How does the Clean Water Rule really affect farmers?

According to the farm lobby and political opponents of the Clean Water Rule, the rule is merely a power grab by the EPA that would severely expand the reach of the Clean Water Act, requiring small and medium-sized farmers to obtain permits for the most simple farming activities, like tilling their land or moving their cattle across streams.

But that argument, according to lawyers who have decades of experience with the Clean Water Act and water law, is completely unfounded.

“For me, it really is surreal,” Pat Parenteau, professor at the Vermont Law School, told ThinkProgress. “To hear arguments today that the Clean Water Act should be narrowly construed, that this is a power grab, that this is an overreach, that this is unconstitutional, is so hyperbolic, it’s so far from the truth, it’s hard to deal with it.”

The Clean Water Rule, Parenteau explains, actually constricts the jurisdiction of the EPA under the Clean Water Act, leaving out important ponds, lakes, and wetlands that used to be protected. The rule also preserves all the permitting exemptions for farming practices that historically existed under the Clean Water Act — these include things like plowing, seeding, minor drainage, agricultural storm water discharges, maintenance of drainage ditches, and construction and maintenance of farm or stock ponds or irrigation ditches on dry land.

“The Farm Bureau’s case is fictional,” Parenteau said. “Maybe they just woke up to the fact that we have a Clean Water Act, and all of these waters that they think are newly regulated have always been regulated. That’s the only rational explanation I can think of. The rest to me is irrational.”

Mark Squillace, professor of natural resources law at the University of Colorado Law School, echoed Partenteau’s interpretation of the rule.

“There has been this myth that has been propagated that somehow the Waters of the United States Rule is expanding regulations for farmers, and that’s just not true,” he told ThinkProgress. “I don’t really see what all the fuss is about here with these rules.”

Kent Peppler, Colorado farmer.

Kent Peppler, Colorado farmer.

CREDIT: Rocky Mountain Farmer’s Union

For Kent Peppler, a fourth-generation Colorado farmer and former president of the Rocky Mountain Farmer’s Union, the Clean Water Rule, if allowed to go forward, would have little impact on his day-to-day operations.

“We didn’t think agriculture was affected as much as a lot of other organizations did, and in fact, there were a lot of exemptions within the rule for agriculture,” Peppler told ThinkProgress. “It was our understanding that those exemptions were going to be maintained and that agriculture really wasn’t going to be affected as much as some people thought it was going to be.”

Agriculture’s complicated relationship with water quality

Agriculture has a deeply complicated relationship with water and water quality — the production of food is dependent on water, and yet agriculture is the leading cause of water impairment for rivers and lakes throughout the United States. Sediment, pesticide, and nutrient runoff that make their way from farmland into water sources have been pinpointed as the primary source of a number of water quality issues, from the dead zone in the Gulf of Mexico to the toxic algal bloom that shut down Toledo, Ohio’s drinking water.

Recently, several high-profile legal cases have brought this tension to the fore, with the Des Moines Water Works lawsuit against farming counties and the Chesapeake Bay region’s struggle between farmers and environmentalists highlighting a newfound focus on controlling agricultural pollution, especially as it relates to urban water supplies.

To some farmers, the Clean Water Rule represents an important first step in curbing agriculture’s contribution to water pollution.

“Whether the exact details of the EPA’s new rules are good or whether they are bad, I feel that they are an important step that needs to be taken because things are worse now than they used to be and there’s no indication that they are getting better,” Iowa rancher Gilbert said.

Lynn Utesch, a farmer who produces grass-fed beef on 150 acres in eastern Wisconsin, also feels that the Clean Water Rule is an important tool to help clean up agriculture’s role in polluting lakes and rivers.

“This is about treating our neighbors respectfully and keeping those waters, that we all need, clean,” he told ThinkProgress. “We need to make sure that we do everything that we can as a farming industry to make sure that we don’t contribute to that problem.”

The American Farm Bureau and legislators working to overturn the rule agree with Utesch and Gilbert that water quality is an important issue for agriculture, but differ in their opinion about how the issue should be fixed. Farmers, they argue, are already doing their part to improve water quality through a slew of voluntary and incentivized conservation measures — federal regulations simply add more red tape, and costs, to farmers that are already doing their part. And the broad reach of the rule, they argue, creates blanket obligations that might apply to some farmers and not to others. Farming in California is a very different practice than farming in Louisiana, or in Wyoming, and inherently requires flexible rules that take into account local differences.

Lynn Utesch, Wisconsin farmer.

Lynn Utesch, Wisconsin farmer.

“EPA has no business dictating land use and deciding these intensely local matters,” the American Farm Bureau’s general counsel Ellen Steen said in a statement.

Farmers like Peppler, Glibert, and Utesch, however, see water quality as too big of an issue not to be dealt with on a federal level. The politics of water quality, Peppler added, are a distraction from the real issue.

“I definitely think that water is a federal issue as far as quality is concerned,” he said. “I also think that it’s agriculture’s responsibility to work with government to make sure that we maintain clean and safe water ways. Partisan politics, when it comes to clean water, really shouldn’t be a high priority. I’m sad to say that I think that on some of these agricultural issues, it’s more of a partisan issue than it really should be.”

Agribusinesses — not small farmers — are the ones with the most to lose

Agriculture enjoys a slew of exemptions under the Clean Water Act and, as a result, has largely escaped being flagged for violations under the law. And even when violations under the Clean Water Act are brought against agricultural entities, Parentaeu explained, it’s rarely against the small rural farmers held up by Ernst and her colleagues as those who have the most to lose under the Clean Water Rule.

“Ninety percent of the enforcement cases have been against large agricultural interests,” he said, explaining that factory farms, which can produce as much animal waste as large cities, are the operations that have the most to worry about. “There are people who are actually cleaning out the chicken coops, but those are not the economic interests driving American agriculture. If you were going to require a permit and clean up their pollution, it would be the big players that would pay for it, not the mom-and-pop farms.”

Mom-and-pop farms — small and medium-sized family farms invoked by legislators that bemoan the financial burden of the Clean Water Rule — have been on the decline in the United States for decades. According to the USDA, the number of American farms fell from roughly 6 million in 1935 to roughly 2 million in 2012. Over the same period of time, the size of the average farm doubled.

At the same time that farms have been getting fewer and bigger, the political influence of the farm lobby has remained strong. As a 2011 report from Environment America pointed out, between 2005 and 2010, the top 10 largest agribusiness interests spent $127 million lobbying Congress and federal agencies. In 2010, the farm lobby had 159 lobbyists working in Washington, D.C. — roughly one lobbyist for every four members of Congress.

“Unfortunately, much of the opposition [to the rule] is coming from agribusiness,” Utesch said. “It’s not actually coming from farmers.”

Joe Logan, a fifth generation dairy farmer and president of the Ohio Farmer’s Union told ThinkProgress that he feels that farmer opposition to the rule is largely a result of a successful PR campaign waged by agribusiness and the Farm Bureau.

“Opponents of the rule, before the ink was dry, did a great job of getting out into the media and hustling their view that this is overreach by EPA,” Logan said. “They weren’t inhibited by the facts — it was a PR battle that was lost before it was started.”

An uncertain future

Ultimately, all of Congress’ attempts to overturn the rule might be for naught — in August, a North Dakota judge ordered an injunction on the rule, barring it from implementation in 13 states. Then, in October, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay against the rule. It’s possible that, in the end, it will be up to the Supreme Court to decide whether the rule stands.

“Here we are fighting over jurisdiction, and in the meantime regulation keeping our waters free of pollution is being stymied,” Squillace said.

That means that until the courts hand down a final decision on the rule, farmers will be left to contend with pollution — both to and from their farms — largely on their own.

“Clean water is extremely important to all farmers,” Utesch said. “I think what too many farmers lose sight of is just because we have it today that doesn’t necessarily mean that it’s going to be that way for forever.”