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Farmers fight EPA proposal

A proposed rule change by the Environmental Protection Agency has some farmers fighting back.

Clay Bailey, president of the Kanawha County Farm Bureau, said the proposed rule change attempts to further define “waters of the United States” and extends the federal agency’s scope of authority in a way that could negatively affect not only farmers, but also the construction and oil and gas industries.

“It expands the scope of navigable waters,” Bailey said. “The waterways are supposed to be controlled by the EPA. We agree with that as long as its rivers, lakes, streams, but they want to expand their scope of authority over what waterways means.”

Under the proposed new definition, the EPA could have authority to regulate standing water in fields or water that pools in ditches. Bailey said farmers commonly deal with those issues, but water that stands in an area only after rainfall eventually seeps into the ground or evaporates. He said under the EPA’s proposed rule, an agent could see that standing water and require the farmer to remedy the situation, even if the water is not stagnant for a long period of time.

“In West Virginia and other states, people are protesting because after we have a rain there are low-lying areas all over the state that contain waters that will eventually dissolve into the ground or evaporate,” Bailey said. “The EPA rule states they can come in and tell you that you need to fix these water runoffs, ditches or whatever or the wet spots we have even though its only wet when it rains. It could cost farmers, construction workers, oil and gas industries a lot of money to fix these areas that are only wet when it rains. That could hurt the industry because people don’t have the money to fix every low-lying wet spot.”

The West Virginia Department of Agriculture has not developed an official position on the issue. According to spokesman Butch Antolini, the department is still reviewing the nuances of the rule.

Bailey said the proposal is an example of the EPA’s overreach. Over the past few years, coal companies and other energy producers have accused the Obama administration of using the EPA to enact new rules and regulations designed to curtail or eventually shut down the coal industry. While Bailey maintains the farmers’ concerns have nothing to do with pollution, he said the rule could be seen as the EPA attempting to micromanage farmers and land management, something they currently don’t have the authority to do.

“The Farm Bureau wants a definition to state what the Clean Water Act actually says,” Bailey said. “We do not want them to micromanage all these little small streams, ditches or farm land. After we plow the fields, sometimes water will stand before crops come up. It evaporates or dissolves into the ground the next day. If they see that water standing there they can make us change all that whether the crops are planted or not. We don’t want this expansion of the federal water act they’re trying to impose. We think its going to tie people’s hands.”

But according to an op-ed by EPA Administrator Gina McCarthy posted to agriculture website, the rule would “support a strong farm economy.”

“By working arm-in-arm with the U.S. Department of Agriculture, we made sure we’re addressing farmers’ concerns up front,” she wrote. “The rule keeps intact existing Clean Water Act exemptions for agricultural activities that farmers count on. But it doesn’t stop there — it does more for farmers by actually expanding those exemptions.”

But according to the American Farm Bureau’s “Ditch the Rule” campaign, which urges people to call on Congress and the EPA to put a stop to and comment on the proposed rule, those exemptions already are narrow and only apply to the Clean Water Act’s “dredge and fill” permit program. Further, the Farm Bureau contends, only farmers who have continually farmed since 1977 are exempt under those provisions.

The West Virginia Farm Bureau has traveled statewide to host meetings with local farmers about what the rule could mean for them. The Farm Bureau’s goal, Bailey said, is to press the EPA to change some provisions in the rule so it doesn’t negatively affect farmers, the construction and oil and gas industries or homeowners. The public comment period ends July 21, and the rule is expected to be amended and finalized by April 2015.

“We want them to clear up the definition and not expand into regions they shouldn’t expand into,” Bailey said.

If the rule doesn’t change, the expense of permits and fixing flagged wet spots could price some farmers out of business, he said.

“We don’t want somebody to come in and tell us we have a ditch that only has water in it when it rains that we have to spend money on permits to fix that because that would be very expensive for individuals,” Bailey said. “We’re afraid a lot of people would get out of the business.”

Contact writer Whitney Burdette at 304-348-7939 or Follow her at

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