While the U.S. Environmental Protection Agency’s controversial waters of the United States rule remains in stasis, leaders of the National Pork Producers Council (NPPC) advised farmers to monitor the issue.

On June 8, NPPC President John Weber, reviewed the current status of the EPA’s regulations, its potential negative impacts, and the industry’s preferred way to move forward. Weber spoke as part of the Washington-based industry association’s press conference at the World Pork Expo in Des Moines, Iowa.

“It’s another layer of bureaucracy we have to get approval on and everyone’s afraid,” Weber said. “No one is sure who has the final jurisdiction on where you can or cannot do a certain project. So it’s already hampering conservation efforts on the parts of farmers. I see that becoming a real problem as we move forward.”

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In August 2015, the EPA and U.S. Army jointly issued the Clean Water Rule, commonly known as the waters of the U.S. rule, in an effort to clarify regulations and strengthen protection of the nation’s waterways from pollution.

Weber said the rule was designed to re-determine what constitutes a water of the U.S., and is effectively declaring almost every body of water and stream as subject to federal regulation. In effect, it creates more paperwork and threatens farmers with steep fines for violation of the rule. Weber said farmers were concerned the rule was overreaching, confusing and ultimately intrusive on their operations and took the regulators to court.

The legal battle is not over, but the U.S. Court of Appeals for the Sixth Circuit has stayed the rule nationwide – meaning the rule cannot be implemented – until the issue is resolved in the courts.

Problems with the rule

If enforced as written, Weber and Michael Formica, the NPPC’s assistant vice president of domestic affairs and counsel, the rule will significantly increase the cost of food production and possibly prevent farming on certain plots of land.

Formica said a significant portion of costs, and headaches, could come from the permitting requirements attached to the rule. He said it would create requirements for multiple new reports, application for permits and other procedures to continue normal farming activities.

The rule also calls for fines as great as $37,500 per violation. They are assessed for pollution – such as dumping manure into a stream – but they can also be issued for minor clerical errors.

“If you are filling out one of the multiple sheets of paper and you get one of your mathematical calculations wrong or … you perhaps initialize (instead of writing a state’s name out) that is also a violation of the Clean Water Act,” Formica said. “The vast, vast, vast majority of enforcement action aren’t for people who actually do some newsworthy environmental crime, it’s for mere paperwork errors.”

Formica said the waters of the U.S. rule allows for citizen enforcement, which means activist groups can spend their time going after farms making clerical errors. While the EPA doesn’t have the resources for such minor issues, activist groups like the Waterkeeper Alliance do, he said, and they spend time looking for clerical errors, compiling them and threatening legal action.

“Really, it’s an extortion racket, that’s the only thing I can call it,” Formica said.  

The most “terrifying” aspect, Formica said, is the rule’s ability to open farm policy to public comment.

“That doesn’t mean your neighbors in Iowa get to weigh in, but you have people in Brooklyn and San Francisco also get to weigh in and tell (a farmer) what exactly the crops he’s going to plant are, what his rates of fertilizer application could be,” Formica said. “They have no idea what they are doing talking about that, but yet they have the right under law to do that if this rule goes forward.”

Potential resolution

Ideally, Weber said, the rule would be repealed and rewritten with greater input from the communities being regulated and the agencies charged with enforcing the rule. He said the EPA and other agencies did not do a good enough job of working with farmers before the rule was enacted, and they shouldn’t be able to regulate the industry without engaging with it first.

The NPPC is not opposed to clean water or technology that will better protect water, Weber said, it’s opposed to the methodology used in the rule.

“This approach of government … coming down without communication to you or your business or your private property, I think is not right, and that’s where we stand,” Weber said. “It’s not that we’re against clean water or doing a better job of being required to do things differently. We want science based and knowledgeable people to guide us and guide our industry to getting to a better result, which is cleaner water in the U.S. This regulatory approach, this is just a vast overreach.”

Weber said the NPPC’s intent is to keep the rule tied up in the legal system until the farmers and the regulators can meet and find a rule that is workable over the long-term for production agriculture.