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When ‘Waters of the United States’ Aren’t Even Waters

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Silly is a funny word. You call babies and toddlers silly when they smile and coo and do funny things.  But adults, especially farmers, are rarely called silly. 

Still, EPA Administrator Gina McCarthy said as much when she called-out farmers and our national association for our very serious concerns about her agency’s expansive new definition of “waters of the United States.”  

According to McCarthy, all of us, here in Illinois and across the country just don’t understand.  She said the EPA and Corps of Engineers don’t intend to regulate land .. in her words.. just “the pollution and destruction of U.S. waters.”  

Unfortunately for all us silly farmers, a closer review of the agency’s proposal, shows that it’s her claims that don’t hold water.   

Since it became law in 1972, the Clean Water Act has helped improve water quality.  No question about that.  The Act regulates multiple sources of pollution and protects rivers, lakes, and streams – “waters of the United States.”

Until now, those have been defined primarily as waters that can be navigated.  

State and local governments have authority over smaller, more remote waters such as ponds and isolated wetlands, and are effective at what they do.  

However, the EPA and the U.S. Army Corps of Engineers want to expand federal regulatory reach beyond what’s navigable to include puddles, ponds, ditches, small wetlands and land features that look like a stream during a rainstorm but are otherwise dry.   If this new definition is allowed, permits which cost time and money would stand in the way of routine farming activities like building fences, removing debris from ditches, spraying for pests, or applying fertilizer.  

If that’s not a definition of government overregulation, I don’t know what is.  

Credit Illinois Farm Bureau
Richard Guebert, Jr.

And farmers aren’t the only ones up in arms.  Illinois homebuilders, real estate agencies, aggregate producers and units of local government will also feel the strain, too.  They know getting permits takes a lot of time.  Delayed projects are costly projects.  

On top of that, any new definition of “tributary” will only create confusion -- and because it’s written to be so vague – it will give federal agencies the license to interpret the regulation as they see fit.    

And that’s what keeps us awake at night.  

Agencies like the EPA and the Corps of Engineers have the power to write regulations but they don’t have the authority to rewrite laws.  But that’s what they’re doing here.  When Congress wrote the Clean Water Act, they clearly intended the law to apply only to navigable waters – not to privately owned land.  

Let me end by asking:  

Is a roadside ditch navigable? How about a grass waterway that only fills with water during a rainstorm? Or that low spot in your backyard?   I can tell you those land features don’t look like water to farmers, either.  

And if you agree with us “silly” farmers, please take a few moments and let your Congressman and Senators know about it.  

Richard Guebert, Jr. is President of the Illinois Farm Bureau and serves as full-time executive officer.

The opinions expressed are not necessarily those of Tri States Public Radio or Western Illinois University.