The Allegheny River in Pittsburgh, Pa.

The Allegheny River in Pittsburgh, Pa.

Major rivers — like the Mississippi — are protected under the clean water act of 1972. But it’s been unclear if smaller wetlands and streams that feed into major rivers and lakes are also safeguarded. The Obama administration is seeking to clear up that confusion. Last month, it announced a rule that would clarify the number of smaller waterways protected by federal law. The Environmental Protection Agency says this will ensure safe drinking water for a third of Americans. But farmers and developers say it violates their property rights. A look at the debate over how to best protect the nation’s lakes and rivers.

Guests

  • Annie Snider Reporter covering water issues for Greenwire and E&E Daily.
  • Don Parrish Senior director of regulatory relations, American Farm Bureau Federation. His primary area of responsibility is dealing with issues involving the Clean Water Act.
  • Ken Kopocis Deputy assistant administrator, Office of Water, Environmental Protection Agency

Map: Drinking Water In The U.S.

This map from ESRI shows what part of the population, by county,  gets drinking water from seasonal, rain-dependent or headwater streams – waterways protected under the new  Clean Water Rule.

Transcript

  • 11:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Republicans in Congress say the Obama administration's new clean water rule is another example of executive overreach. Republican lawmakers and some Democrats on Capitol Hill want to overturn the regulation. Here with me to talk about what this rule would mean for the environment, health and business, Ken Kopocis with the EPA, Annie Snider with Greenwire and Don Parrish with the American Farm Bureau Federation.

  • 11:07:29

    MS. DIANE REHMDo join us 800-433-8850. Send an email to drshow@wamu.org. Follow us on Facebook, or send us a tweet. And thank you all for being here.

  • 11:07:46

    MS. ANNIE SNIDERThanks for having us.

  • 11:07:47

    MR. DON PARRISHThank you.

  • 11:07:48

    MR. KEN KOPOCISThank you very much, Diane.

  • 11:07:49

    REHMGood to have you all here. Ken Kopocis, tell us what this new clean water rule aims to do.

  • 11:07:58

    KOPOCISWell, thank you. This rule aims to provide clear protection for clean water. We all know that we need healthy, clean waters upstream if we're going to protect the waters that are downstream, and the clean water rule protects those streams and wetlands that feed our larger water bodies, that form the very foundation of the water system that we all depend on, our rivers, lakes, bays, coastal waters and beaches.

  • 11:08:23

    KOPOCISThis rule is an extension of what Congress gave the agency the responsibility to do in 1972, and that is to restore and maintain the chemical, physical and biological integrity of the nation's waters. But today, as a result of two Supreme Court cases, one in 2001 and one in 2006, there are too many instances where the protection of water is uncertain. In particular, there are about 60 percent of the waters of the United States that only flow seasonally or when it rains, and these waters actually provide the drinking water for some or all of one in three Americans or some 117 million people.

  • 11:09:04

    KOPOCISAnd it -- because it's not clear that these waters are protected, the agencies are concerned that these waters could be polluted or destroyed and create a health problem. So we set out to rewrite the rule at the request of stakeholders all around the country. Every sector of the economy and every political stripe asked us to do a rule. We put a rule out. We received over a million comments on it. We held over 400 public meetings to hear responses of what people thought about our proposal.

  • 11:09:38

    KOPOCISAnd so now we are going to ensure that waters protected under the Clean Water Act are more clearly defined, more predictably determined and easier for businesses, industry and individuals to understand.

  • 11:09:50

    REHMKen Kopocis, he's deputy assistant administrator for the Office of Water at the Environmental Protection Agency. Annie, the rule aims to clarify a debate over what types of smaller tributaries, ponds and even ditches are protected?

  • 11:10:17

    SNIDERYes, so as Ken alluded to, the Clean Water Act aims to protect and clean up the big rivers and waterways that we all think of, the Mississippi River, the Chesapeake Bay, but there's been this long debate, ever since basically the Clean Water Act was passed in 1972, about how far up into the headwaters that protection should go. So, you know, if you want to clean up the Mississippi River, it's sort of intuitive that if you've got things that are dirty flowing into it, you've got a problem.

  • 11:10:46

    SNIDERAnd so should you be protecting the streams that flow into the Mississippi? What about the streams that flow into the streams that flow into the Mississippi? And what about the wetlands near them? And so there's been this long debate over how far that should go. EPA and the Army Corps of Engineers, which are the two agencies that sort of implement the Clean Water Act, had for a long time taken a really expansive approach to that and, you know, regulated just about everything.

  • 11:11:08

    SNIDERBut there's been a big fight going on about it and a lot of court cases, and as Ken said, two of those made it to the Supreme Court, and the justices really muddled it. They took a confusing situation and made it more confusing. And so there's been just mass confusion on the ground. Nobody's known which streams and wetlands and even ditches might warrant protection, and that hasn't been good for industry, who just, you know, want to know if they need a permit to do something or not.

  • 11:11:33

    SNIDERIt's not been good for regulators, who have spent just enormous amounts of time making the calls and then having them challenged in court, and it hasn't been good for environmental groups, who have seen things going on that they have been worried about, oil spills and the like, that have been caught up in this confusion, where nobody's been held accountable. And so this rule is aimed at sort of drawing some lines and clearing up that confusion.

  • 11:11:53

    SNIDEREverybody has wanted more clarity, but where that line gets drawn has been very controversial, and Don will be more than happy to tell you about why he feels...

  • 11:12:01

    REHMSure. And Don, turning to you as the representative from the American Farm Bureau Federation, I gather farmers are very concerned about this new rule.

  • 11:12:18

    PARRISHDiane, you can rest assured that farmers are very concerned about water quality and protecting water quality.

  • 11:12:24

    REHMSure.

  • 11:12:24

    PARRISHAgain, we think we've got a, you know, a kind of a mandate, I guess, to protect our resources and produce affordable food. Where we're concerned is when you get out to the outer limits of this proposal, this now final rule, it really blurs the distinction between regulating water and land use. We don't deny that if a drop of water hits the surface of the Earth, it could wind up in the ocean, but where along that path does EPA have the authority to regulate?

  • 11:12:56

    PARRISHAnd we don't think Congress intended for that regulation to interfere with land use, and we know for sure that as far as this is going, it's going to impact farmers and ranchers. You know, Ken's even described it as a generational change. We concur with that, and it's not going to be the better for farmers and ranchers.

  • 11:13:15

    REHMSo from your point of view, the rule is too broad?

  • 11:13:20

    PARRISHNot only too broad, Diane, it's too vague. It hands all of the ability to define what is water or what is dry land to the agency because they've just -- they've defined it in ways that no person that farms the land can understand. And they've also proposed tools that farmers and ranchers don’t have access to in order to find these rivulets or pathways that waters could reach ultimately the ocean. And we think that's a -- we think it's not only a due process issue because farmers -- it would be tantamount to printing speed limit signs in Braille. They don't know, and they're going to have a hard time understanding where to stay out of trouble with the law, law that's going to cost them $37,500 a day if they violate it or time in jail.

  • 11:14:11

    REHMAnnie, and do you agree that the manner in which this has been written is vague as far as farmers are concerned?

  • 11:14:21

    SNIDERWell look, the Clean Water Act is not a simple thing.

  • 11:14:26

    REHMRight, of course.

  • 11:14:26

    SNIDERIt's a really long and complicated law. And the permitting mechanisms are also really complicated. You know, the main industries that have to deal with it are, like, homebuilding and construction and oil and gas. And they hire consultants to go out and figure out where these lines are drawn. Agriculture is a little bit of a different story. It's -- you're not necessarily going to hire a consultant. What Ken will say, though, is that, you know, agriculture is also treated differently under the Clean Water Act. They don't need permits for everything that the oil and gas industry or that homebuilders or other industries would need.

  • 11:14:57

    SNIDERBut it is a particular challenge. You've got people who aren't the experts who need to understand it, and that's been a real challenge for the agencies in writing a rule that an -- you know, that a person who's not an expert can understand.

  • 11:15:12

    REHMAnd Ken, what's your response to these concerns from agriculture and farmers?

  • 11:15:19

    KOPOCISWell, I think in the first instance, of course, it was -- the agriculture sector was one of the sectors that asked us to respond to the Supreme Court rulings. And we set out to do that. We took a rule that was - that had been in existence since the late 1980s that the Supreme Court had opined on twice but hadn't told the agencies how to change it, told us to follow the science, and that's what we set out to do was to follow the science.

  • 11:15:41

    KOPOCISAnd how was it that upstream waters could affect downstream waters? But also, equally as important, how could we be more transparent in the rule itself? How could we provide that kind of information? And so for example on the issue of what tributaries are or are not covered by the Clean Water Act, for the first time we put in a definition of what is a tributary so that someone can read it for themselves and can draw a conclusion.

  • 11:16:03

    KOPOCISWe also indicated that there has to be the physical presence of features to constitute a tributary so that you don't just -- you don't just do it on the seat of your pants, but you can actually do a decision, again, based on science. We also responded to many of the comments that we received. Where we were told that our proposed definitions were unclear, we changed them. Where we were told that they were excessively confusing or complex, we changed them. Where we were told that we did not provide enough information, we put more information in the rule so that it is a more transparent operation than what exists today because today the problem is that way too many of these decisions are made on a case-specific basis with little or no guidance that exists either in the rule or direction from the agencies.

  • 11:16:50

    REHMAnd what about permits? Would the new rule require farmers to get permits from the EPA for the use of pesticides and fertilizers?

  • 11:17:04

    KOPOCISWe set out very much to make sure that we did not change the status of where farming exists today. Pesticides, if they're applied on or near waters, are covered by a general permit that we have. We've had it in place for many years. And the basic terms of the permit is that they need to follow the label directions. And we also set out, in response to what we heard from the farming community, that our proposal was reaching deeper into farmers' fields than was the case before that. So we modified the final rule again to make sure that we retain the status quo.

  • 11:17:38

    KOPOCISThere are going to be some areas in agricultural areas of the country, some rural areas, where there are jurisdictional waters. But those are the same waters that are jurisdictional today. We went out to be very careful that there was no expansion of what was covered.

  • 11:17:56

    REHMKen Kopocis of the Environmental Protection Agency. Short break, and when we come back, we'll talk further, take your calls, your email. I look forward to hearing from you.

  • 11:20:01

    REHMAnd welcome back. We're talking about new rules issued by the EPA concerning water, and there are many details to this new rule affecting both land developers and farmers. Here in the studio, Ken Kopocis of the Environmental Protection Agency. Annie Snider is a reporter with Greenwire. She covers water issues. Don Parrish is senior director of regulatory relations for the American Farm Bureau Federation.

  • 11:20:48

    REHMAnd Don, I want to come back to you on this question of fertilizers and pesticides. Are agricultural groups clear about when those can and cannot be used?

  • 11:21:07

    PARRISHMs. Rehm...

  • 11:21:11

    REHMPlease call me Diane.

  • 11:21:12

    PARRISHDiane.

  • 11:21:12

    REHMThanks.

  • 11:21:12

    PARRISHFor instance, there's a couple things I want to talk about here. Ken referred to permits being available for pesticides. Right now there are no permits for agriculture for pesticides or for fertilizers. They are only for uses that are outside of the agricultural arena. So there are, and never have been, permits for the use of accepted and lawfully applied products in the agricultural landscape because we view what we do as applying products to land in order to prevent weeds or control disease so that we maintain the health of our plant and then also be able to provide, you know, the public food.

  • 11:21:53

    REHMBut of course it has been confirmed that some of those pesticides, some of those fertilizers, are finding their way into water streams of all kinds. So perhaps that is why the need for new permits?

  • 11:22:15

    PARRISHWell, that's a conversation we can have, and it's a conversation about, then, how the fate and transport of those products reach water. It's not about expanding the jurisdictional footprint. One of the other things I want to point out is Ken indicated that certain exemptions, and again almost all the time -- almost every time he talks about agriculture, he uses qualifiers. And in the case of the exemptions, the exemptions are very narrow, to only one section of the Clean Water Act. They do not apply to other sections of the Clean Water Act.

  • 11:22:47

    PARRISHAnd as Annie said, this is a very complicated statute.

  • 11:22:50

    REHMYes.

  • 11:22:52

    PARRISHBut it's also one that carries strict liability, and it's -- if this rule is implemented as it has been finalized, it's going to have very significant implications for the way farmers farm the land. We've always tried to educate farmers. Farmers are one of the most educated groups of people out there. Most of the farmers I deal with have at least masters degrees. This is going to be really difficult, even for highly educated people, to deal with.

  • 11:23:18

    REHMAll right, and Ken, let me turn to you on the issue of permits. Help us understand why in this new rule they are necessary.

  • 11:23:30

    KOPOCISWell, I do want to repeat that we believe that the status of farmland is unchanged under the new rule as it exists under the old rule. So I think that is a point I don't want to lose sight of. But secondly I want to emphasize that the Clean Water Act only applies if you're going to discharge a pollutant or fill material into a water of the United States. And so the application of anything on land is not regulated by the Clean Water Act.

  • 11:24:00

    KOPOCISThe issue comes up, in the agricultural sector, because the Clean Water Act also applies to wetlands. But all of the justices of the Supreme Court have agreed that the Clean Water Act does apply to wetlands and that a water does not have to be wet 12 months a year, every day, to be considered jurisdictional under the Clean Water Act and to be protected from pollution.

  • 11:24:24

    KOPOCISSo what -- when Don talks about regulating activities on land, I assume that what Don is talking about is on wetlands that could be found to be jurisdictional. But the Supreme Court in 2006 narrowed the ability of the agency to establish jurisdiction over those kinds of wetlands by saying that we had to demonstrate, the agencies have to demonstrate, that there is -- the term they used was a significant nexus or a significant effect on upstream-to-downstream waters. And that's a critical component.

  • 11:24:55

    KOPOCISAnd if you'll give me one more moment, I do want to clarify, as well, because you made mention of the fact that some of these fertilizers or pesticides do find their way into waterways. But if a farmer applies a pesticide or a fertilizer to their field, and it just runs off when it rains, that is not regulated by the Clean Water Act. Today, it's exempted by statute as agricultural stormwater, or it's considered to be a non-point source. Either of those would allow it to be outside the Clean Water Act.

  • 11:25:27

    REHMBut help me to understand, then, when a farmer must apply for a permit using these pesticides or fertilizers.

  • 11:25:39

    KOPOCISIf there is going to be a direct application to a jurisdictional water, a water covered by the Clean Water Act, then a permit would be required.

  • 11:25:48

    REHMTell me how close to water that farmland would have to be to have the farmer obtain a permit.

  • 11:26:01

    KOPOCISWell, and actually what we did between proposal and final, in the proposed rule, we had said that waters that were neighboring to jurisdictional waters, streams and the like, would be considered to be jurisdictional. We heard from the agricultural community concerns that we were picking up wet areas in farmers' fields that could be considered jurisdictional and raise the very issue that Don has talked about. So in the final rule, we went in and said specifically that normal farming and ranching and forestry activities.

  • 11:26:32

    KOPOCISIf you're engaged in those activities, we are not going to bring you automatically into the Clean Water Act. Instead, you will be subject to the same analysis that you are today, and that is, is there a significant effect from those waters to the downstream jurisdictional waters?

  • 11:26:49

    REHMSo Annie, how clear is this language for farmers?

  • 11:26:55

    SNIDERWell, I'm not a farmer, so I can't answer that question as a farmer would.

  • 11:26:59

    PARRISHBut Diane, let me ask Annie, too.

  • 11:27:04

    REHMOkay.

  • 11:27:06

    PARRISHIs any discharge to a water lawful under the Clean Water Act without a permit?

  • 11:27:14

    SNIDERIs any discharge? I mean, it depends on where it's coming from, so...

  • 11:27:18

    PARRISHThere's a complete prohibition on point-source discharge as to waters of the U.S., and if you expand the definition of what constitutes a water, and it may look perfectly, Diane, like land, most of the year except when it rains, when the water runs off of the field, if those areas are jurisdictional under the tributary definition, then farmers are either going to have to stop farming those areas or seek permits or both.

  • 11:27:47

    REHMCan you speak to that, Ken?

  • 11:27:48

    KOPOCISYes, I can. And again, it goes back -- we went and studied through what was in our proposal, what we heard in the meetings and in the written comments that we held, and actually many of us spent time out on farms, talking to farmers. And we wanted to ensure that the final rule left the status of farmers as it always has been. And what we did was make sure that we didn't bring these waters in automatically. We made sure that a farmer could continue to operate the way that they had been, and we made sure that the -- any requirements for permits that may have existed would be the same going forward under this new rule.

  • 11:28:32

    REHMSo go ahead, Annie.

  • 11:28:35

    SNIDERYeah, well, so there's a couple of things going on here. So one is this question of fertilizers and pesticides and the need for a permit today. And as you can hear, there is some debate about whether this might change something or not. So -- and remember again, this is all set against the backdrop of today, you know, before the rule goes into effect, it's really confusing. Is a ditch, you know, on your property covered by the Clean Water Act or not? You don't really know. If it's covered, today you're probably supposed to be getting a permit to get a pesticide for it.

  • 11:29:01

    REHMIs a ditch on your property covered by the Clean Water Act?

  • 11:29:05

    KOPOCISThe agencies have long exerted jurisdiction over certain ditches. Most ditches, the answer is no, and what we did in the final rule is we put in specific exclusions for ditches to provide, again, more predictability. Somebody could look at what the rule says and draw their own conclusion. We greatly narrowed the scope of ditches that would be covered even under today's guidance that was issued by the prior administration. Our rule going forward captures fewer ditches than the old rule does.

  • 11:29:38

    REHMDoes that answer your question, Annie?

  • 11:29:40

    SNIDERI mean, a lot of this is going to depend on how it plays out on the ground.

  • 11:29:42

    REHMYeah.

  • 11:29:43

    SNIDERAnd to be perfectly frank, how EPA decides to enforce things. EPA's enforcement budget is small and often getting smaller, and so that's part of the reason for some of this confusion today. Our farmers today applying fertilizer in places where they probably should have a permit but don't, probably, probably, but, I mean, EPA does not have the bandwidth to go after every single one of those cases, nor does it want to. That's a way to get a lot of hostility on the ground.

  • 11:30:12

    SNIDERThere is a bigger picture here that I want to make sure we understand, though, and that -- we've alluded to it a little bit. You know, fertilizer from -- can wash off of farmers' fields and suburban lawns and make their way into waterways, and that type of thing is largely unregulated today under the Clean Water Act. And that's -- this rule is not taking that on. It's not changing what types of activities get regulated.

  • 11:30:31

    SNIDERBut we do have a large water pollution problem in our waterways. So when the Clean Water Act was passed in 1972, two-thirds of U.S. waters were deemed polluted, you know, unfit for fishing and swimming. Today we've solved half that problem, but we still have a third of our waterways are not clean for that. And at this point, when -- the biggest part of the problem is coming from these unregulated sources of pollution, things like farm fields and suburban lawns and city streets. And so this rule doesn't take that on, but what it does is sort of lay the groundwork for how, for when somebody might want to change that later.

  • 11:31:07

    SNIDERSo with these problems remaining persistent, are the rules going to change down the road? Might Congress or a legislature or the president decide to change some of the exemptions that exist today, and -- but the concern is that this rule is clearly stating that the headwater streams and the areas that are further upstream are covered by the Clean Water Act. So if those rules change down the road, it's going to be further up in the headwaters, where -- that it can reach.

  • 11:31:37

    REHMAnd that makes you that much more concerned, Don.

  • 11:31:40

    PARRISHWell, we can have that debate, and I think it's an important debate because farmers need nutrients, they need crop protection tools to produce the food we need. And we can talk about how we want to address those issues. But what I want to get back to is the specific terms that this regulation talks about. Tributaries are regulated categorically. That means that there are no exclusions. And if you violate the law, you violate, you know, you're at risk of $37,500 a day in criminal penalties.

  • 11:32:14

    PARRISHIt's a disservice, it's a doublespeak on two levels for EPA to say this doesn't change the way farmers are treated. It does. It changes the way they can farm their land. And anytime the agency talks about they regulate less land today, but yet we're protecting millions of additional acres, which is it? It's doublespeak. We don't know. And then when you look at EPA's economic analysis, Diane, they indicate they're only going to -- they're only going to have additional permitting for about 1,400 additional acres. I don't know what it is. Every, every regulatory safeguard that Congress and the administration has ever put into place, whether it be SBREFA, whether it be federalism consultations, whether it's just alternative analysis, this EPA ran every one of those red lights and didn't analyze any of that.

  • 11:33:06

    REHMAll right, and you've raised a lot of issues. Let me ask you about these fines, Ken, and how they are administered. But first, let me just say you're listening to "The Diane Rehm Show." Tell me how these fines are administered. Give me an example of a violation of something that a farmer does that would ensue with a fine being placed.

  • 11:33:43

    KOPOCISWell, in the first instance, of course, it isn't the agency's intent to fine farmers for farming.

  • 11:33:46

    REHMI understand.

  • 11:33:48

    KOPOCISWe work very hard with people to make sure that they come in compliance with the Clean Water Act and that -- so that no fines or penalties are necessary. We work very hard to get information out to the public so they know what their responsibilities might be. We also -- I want to reiterate, most determinations of what is or is not covered by the Clean Water Act is actually done by the Army Corps of Engineers, and they have -- they have 38 offices around the country. And any individual at any time is free to contact them, and they will come out to a person's property and tell you whether a water is or is not covered by the Clean Water Act.

  • 11:34:30

    REHMAll right, so if a farmer has concerns, or if a farmer, say, receives a notification in the mail that he is somehow in violation of the Clean Water Act, what response, what opportunity does that farmer have short of being fined?

  • 11:35:02

    KOPOCISWell, in the first instance is that that farmer's not likely to get something in the mail that indicates a potential violation. What they're going to get, most likely, is a visit, somebody who's going to say it's been brought to our attention, however, that there may have been an issue associated with the Clean Water Act. And that would generally involve a -- can we do a site visit, can we talk, can we take a look at it, can we make a decision and agree on whether there is or is not a Clean Water Act issue that's been presented.

  • 11:35:31

    KOPOCISIf there has been, then the normal next step would be how can I ameliorate it. If I filled in an area that should not have been filled in, do I remove the fill? Or do I do mitigation someplace else to try to offset the loss of the habitat or water quality value or whatever? It's in the very, very rare case that it actually ends up being an enforcement action, where an individual is subject to fines or penalties.

  • 11:36:01

    REHMHow many enforcement actions have you seen, say, in the last couple of years?

  • 11:36:10

    KOPOCISWell, I don't have that number off the top of my head. I can tell you that in the overall priorities for the agency, where we do enforcement, this is not an area where we have a large number of enforcement actions.

  • 11:36:24

    REHMDo you want to speak, Annie?

  • 11:36:25

    SNIDERYeah, well, I just want to make sure that we're thinking about the full scope of what is at stake here. So we're talking a lot about agriculture, and this does have a lot of implications or potential implications for farmers. But this rule is about the Clean Water Act as a whole, and there are other industries that are, you know, arguably more affected by it, so oil and gas, homebuilders, construction, anybody who's working across the landscape. Those industries don't have the sorts of exemptions that agriculture does, and in fact it's a lot of those other industries that we have seen more -- seen enforcement actions against, particularly in the wake of the existing confusing.

  • 11:37:04

    SNIDERSo the second confusing Supreme Court decision was in 2006, and in the years after that, like I said, there was mass confusion about which waters and wetlands were covered, and EPA had to drop a number of cases that it had ongoing in the wake of that confusion. So one example was an oil spill in 2007 along a stream in New Mexico. So this was a stream that was dry most of the year but flowed during heavy rains, and there was a big, 200-gallon oil spill next to it that EPA couldn't enforce.

  • 11:37:38

    REHMAnnie Snider, she's a reporter with Greenwire who covers water issues. Short break here. We'll open the phones when we come back. I look forward to speaking with you.

  • 11:40:02

    REHMAnd welcome back. As we talk about water issues and new rules from the Environmental Protection Agency governing not only farmland and farmers how they do their work, what water is on their land. But also the building and gas and oil and communities. But we're restricting our conversation to farmlands in this hour. Here's a tweet from Kenny. Is there a list or map that farmers can check to see if a wetland or waterway is subject to the new water rules? I wonder, Ken Kopocis of the EPA, is there such a map? Is there a possibility for such a map?

  • 11:41:00

    KOPOCISWell, no such general maps exist. It would be very expensive and time consuming to generate those maps, and it would require somebody from the Army Corps. or EPA to physically go visit every piece of property that may have water on it. And of course, because the Clean Water Act only applies if you plan to discharge a pollutant or fill material, it could be a useless act as well. However, an individual could certainly make an inquiry to their local corps of engineers' district office and see if a prior determination is on file.

  • 11:41:34

    REHMInteresting. All right, and here's an email from Mail in Jefferson City, Missouri. This, for you, Don, from the American Farm Bureau Federation. Please ask for an example of what quote, is going to be really difficult, unquote, for educated farmers, to implement.

  • 11:42:02

    PARRISHOkay. One of the things that changed from the proposal to the final rule is the definition of tributary. In the proposed rule, the proposed rule required an actual bed, bank and ordinary high water mark. In the final rule, EPA expanded that to include indicators of bed, bank and ordinary high water mark. And then, they expounded on what those indicators are, including the use of something called Lidar, and Lidar is kind of like, think of it as, you know, radar on steroids.

  • 11:42:38

    PARRISHIt can show very minute changes in the landscape, in the topography of a farmer's field. And actually show where the water may actually run across the field when it rains. And if -- and I really want your readers to understand that those are the areas that we're talking about.

  • 11:42:54

    REHMListeners.

  • 11:42:54

    PARRISHBecause if you no longer need someone to come out and look, all they've got to do is sit behind the desk and look at technologies, because farmers don't have access to Lidar. To determine where on the landscape they're going to regulate, that really puts the farmer in jeopardy. Including the fact that, you know, even though the agency says they intend not to have these things apply to agriculture, particularly permits, they could have very easily put that in the language of the rule, and they chose not to.

  • 11:43:27

    REHMAll right, Ken, help me explain, help me to understand the Lidar and what it could mean to water existing on a farmer's land.

  • 11:43:40

    KOPOCISWell, we -- the agencies have long used technologies or other information that's available to make an initial determination of whether there could or could not be water subject to the Clean Water Act. And those are things such as USGS soil maps, NRCS data on soils, local maps. Lidar is a technology which is in use today. It has been for a considerable amount of time. But I think what I'm hearing is a misapprehension that the agencies will make final decisions based on using these tools. And that is simply not the case.

  • 11:44:16

    KOPOCISAny producer out there, anywhere, is free at any time to ask for a person to come out and visit their water feature and make a determination. And, in fact, long before the agencies would consider doing anything in any type of an enforcement action, we would of course, would be making a physical visit so that we knew that it was or was not jurisdictional.

  • 11:44:37

    REHMAll right, to...

  • 11:44:38

    KOPOCISNow Diane, that same...

  • 11:44:39

    REHM...excuse me. Excuse me. You wanted to say something?

  • 11:44:43

    KOPOCIS...I'm sorry. I would. That sounds very reasonable. But in this proposal, or in this final rule, the agencies say that they can conclusively establish these features. And if they can do that, as well as look back in history to see how this land was treated, not how it is being used today or how the characteristics of the land today. It really provides a liability going forward, for farmers and ranchers, that they can't control.

  • 11:45:09

    REHMAll right, let's take a call from Henderson, Iowa. Kevin, you're on the air.

  • 11:45:17

    KEVINWell, good morning, Diane. I applaud anyone who makes efforts at keeping the environment clean, preventing pollution, but I honestly have to say that I believe these new regulations are simply whistling past the graveyard. That what's been done to the Iowa farmland is it's basically been sterilized. Nothing but weeds will grow out there without the chemicals that are added into it. I live in an oasis surrounded by farmland. It's been farm for at least 100 years. I can take three steps off my property, turn over a shovel full of soil, and there's not a single living organism in that soil.

  • 11:46:03

    KEVINI take a step back on to my property, turn over a spade full of dirt, and there are microbes, bugs, night crawlers, living organisms, year round. I believe, honestly, the most we can do, is try to prevent the most egregious polluters from getting away with it. And I believe the Farm Bureau's hand in this is that they don't want the industrial ag. Industry in America to have to pay for the damage they're doing to the environment.

  • 11:46:43

    REHMDo you want to comment, Don?

  • 11:46:44

    PARRISHI would, Diane. I would argue that this regulation, and it's gonna be so costly for farmers to implement, is actually going to drive smaller and mid-sized farmers out of business. I would believe this is going to have a huge impact. You know, farmers don't have compliance officers to help them apply for permits or to keep them out of trouble with the agency. I think this is going to have a real impact on the structure of agriculture going forward.

  • 11:47:10

    REHMAnnie, can you comment?

  • 11:47:12

    SNIDERWell, so, there are a few reasons why people who aren't farmers should care about what this means for agriculture, so, as Don alluded to, there's how affordable food and fiber and the like are for people who buy them. And there's also sort of the international competitiveness, so agricultural exports are one of our few exports, as a country. And we're able, that we do export that, because we're able to produce things cheaper here, and we're able to get those goods cheaper to market. And so, some of what's debated about, in terms of increasing environmental regulation.

  • 11:47:47

    SNIDERAnd again, you can debate about what this rule would do, in terms of whether it actually would increase regulation. But one of the arguments is that additional environmental regulation could make the US agricultural industry less competitive, and so that's part of what's at play here.

  • 11:48:02

    REHMAt the same time, I as a consumer of water, would like to make sure that the water I drink is free of pesticides and fertilizers. And I am presuming that that's why these new regulations are in effect.

  • 11:48:53

    KOPOCISYes, Diane. We very much believe that one of the major benefits of this new rule is ensuring the protection of the drinking water supplies of one in three Americans. As I said earlier, some 60 percent of our nation's streams flow only seasonally and when it rains. And these provide drinking water to one in three Americans. And we want to make sure that we use the Clean Water Act, as Congress told us to, to make sure that we restore and maintain the quality of those waters.

  • 11:48:57

    REHMAnd what about the idea that these new rules could, as Don has said, put smaller farmers out of business and give more support to larger agriculture companies?

  • 11:50:15

    KOPOCISWell, as I said, we set out to try to maintain the status quo for agriculture. We believe that we have succeeded in doing that. I understand that there are some who feel differently. And obviously, the agencies will continue to work with those who have a difference of opinion to make a determination of are there ways that we will implement this to fulfill our stated goal. And that is to maintain the status quo. My personal visit with farmers, out on their farms, has been that they are pretty sophisticated.

  • 11:50:15

    KOPOCISThat they actually can identify where there's something that is a stream that would be protected by the Clean Water Act. Or there is a ditch that's moving water to or from a farmer's field that would be excluded from the Clean Water Act. I actually think that farmers, as Don says, are highly educated and are highly capable. And by providing a rule that has more predictability, more transparency, we think that that will only aid farmers in understanding what their responsibilities may or may not be under the Clean Water Act.

  • 11:50:15

    REHMAll right, to Toledo, Ohio. Sarah, you're on the air.

  • 11:50:22

    SARAHGood morning, everyone. As most people know, last summer, Toledo experienced the results of agricultural runoff. And this has been going on, really and truly, for the better part of 40 years. And that local government only disclosed it. At any rate, someone mentioned earlier that this is a complicated situation. It's not so complicated. We live in a geodesic world. Everything is interrelated. And the fact is it boils down to money.

  • 11:50:54

    SARAHBecause these farmers, although well educated, are a part of the industrialized agricultural complex. It's about money.

  • 11:51:05

    REHMDo you see this as all about money? Don.

  • 11:51:09

    PARRISHI don't, Diane. I think farmers and ranchers take their social responsibility very, very seriously. Farmers own land, and it's just like when people own homes. They treat it differently than people who don't own property. They want to make it better, they want to pass it on to their children in better shape than what they ultimately had. And clearly, science and the way that we are producing, you know, agricultural products, is improving. And we're going to be able to do that in a way that provides for clean water.

  • 11:51:45

    REHMAll right.

  • 11:51:45

    PARRISHAnd clean, and food.

  • 11:51:47

    REHMAll right, to Robert in Naples, Florida. You're on the air.

  • 11:51:53

    ROBERTYes, hi Diane. I grew up in Indiana. And the farmland there is much as your first caller, I think, mentioned that it's dead. They polluted it. They've got -- and what they tend to do is they'll plow right up to the edge of a tributary, or of a drainage ditch, or water that runs into a tributary. They'll plow right up to it, and all the -- and then they'll spray their herbicides and pesticides and all that runs right into the tributary. Now, does the -- my question is, does the EPA require farmers to have an easement between the tributary and his field, such as maybe 50 feet that is all weeds or trees.

  • 11:52:51

    ROBERTBecause in Indiana, they've cut the trees down and plowed everything under, up to the edge of the tributary.

  • 11:53:00

    REHMKen.

  • 11:53:00

    KOPOCISWell, thank you very much for that question. Congress did not give EPA the authority to require those kinds of buffers or setback areas. However, they are commonly used. Many states have recognized that to meet their water quality goals and to keep pollutants out of waterways, that there needs to be some sort of a buffer strip. Buffers can be very effective at slowing runoff, absorbing the nitrogen and phosphorus that's applied to fields. And also absorbing the pesticides, so that they do not get into nearby waterways. But EPA itself does not regulate that kind of activity. Congress did not give us that authority.

  • 11:53:39

    REHMDon.

  • 11:53:40

    PARRISHI actually take exception to both of those callers, in the fact that if you were to have soil scientists from both Iowa and Indiana present and a part of this discussion, they will tell you that the nature, the texture of soil, the living part of soil, is getting better almost every year.

  • 11:54:02

    REHMAnd yet we've heard from these two farmers.

  • 11:54:05

    PARRISHCallers. And I think that's part of a misconception. I think they see agriculture kind of monolithically, because they're not out there.

  • 11:54:13

    REHMNo, they talked about their own farms. I mean, it's not as though they're speaking theoretically. They both talked about their own farms. And you're listening to "The Diane Rehm Show." Annie, you wanted to say something.

  • 11:54:33

    SNIDERWell, I guess I want to make sure that we're clear on what can and can't be done to staunch polluted runoff coming off a farm field. So, there are things that we know work. The caller referenced buffers. That's something that's often very effective. The challenge is that it's really -- depends on individual fields. It depends on what you're growing, it depends on where in the country you are. It depends on the hydrology. And so, being able to say there's this one thing that everybody can do.

  • 11:54:59

    SNIDERYou know, every farmer should do it and that will solve the problem. Not only does the federal government not have the authority to do that, but there isn't just one thing. And the other challenge is that many of those things cost money. And who is going to pay for it? Should it be the farmer or should the federal government. There's lots of efforts and lots of programs underway in which the federal government will help fund some of these projects. If you build a buffer, you are taking productive ag. Land out of production.

  • 11:55:23

    SNIDERThat is a lot of money, depending on where in the country you are. And so, the question is does the federal taxpayer fund those sorts of efforts, or should that somehow get ruled out to the farmer? Right now, it's the federal taxpayer because there is no regulatory hook, you know, nothing that the federal government can make you do to force that. However, we are seeing, again, because of these persistent water quality problems around the country, we are seeing efforts by the states and by the federal government to try and go further. So, in the Chesapeake Bay region, there's a big effort underway.

  • 11:55:53

    REHMSo, you've got a bipartisan group of lawmakers on the Hill fighting these new rules. Tell me what their issues are.

  • 11:56:02

    SNIDERYeah, there is a big fight in Congress going on over this right now. The House has already passed both stand-alone legislation and efforts to block the rule, and efforts through the appropriations process, to block the rule. But the real fight is going to be in the Senate, where this is going to be a squeaker. So, we have a stand-alone measure that was introduced by Senator John Barrasso of Wyoming, a Republican, and Joe Donnelly of Indiana, a Democrat. There are, last time I checked, three Democrats signed on.

  • 11:56:30

    SNIDERThat measure was passed out of committee a week or two ago on a party line vote. So, Republicans supported it. Democrats opposed it. We expect it to come to the floor probably this summer. And we'll see. It's anybody's guess which way it's going to go.

  • 11:56:43

    REHMHow do you think it's going to go, Ken? Last word.

  • 11:56:48

    KOPOCISWell, it's very difficult to make predictions at this point. The administration has made its views known, that it is opposed to the legislation that's currently moving in Congress. We'd like to think that we will not have to face that. But at the same time, the agencies remain very committed. We think we've done an excellent job on this rule. And we want to see about implementing going forward.

  • 11:57:10

    REHMKen Kopocis of the EPA, Annie Snider with Greenwire, Don Parrish of the American Farm Bureau Federation. Thank you all so much.

  • 11:57:23

    KOPOCISThank you.

  • 11:57:25

    PARRISHThank you.

  • 11:57:25

    REHMAnd thanks for listening, all. I'm Diane Rehm.

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