January 5, 2004

Vol. 83 No. 1

  CAPITAL UPDATE  

The Environmental Protection Agency's recent decision not to clarify the federal government's jurisdiction over isolated wetlands will create continued confusion over where and when permits will be required for routine farming practices, according to the American Farm Bureau Federation.

AFBF said it was "very disappointed" that the administration chose not to fix the problem of ambiguity over the government's authority under the Clean Water Act. Farm Bureau had urged the administration to issue a rule-making clarifying federal jurisdiction in the wake of a Supreme Court decision (Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers) that isolated wetlands, those not directly connected to navigable waters, are not subject to federal oversight.

"Farm Bureau believes the agency's decision will create continued confusion and conflict…. We believe the agency has abdicated its responsibility to administer the law in a clear manner that provides consistent protection of land, water and wildlife while also providing for economic activity," AFBF said in a letter to EPA Administrator Michael Leavitt.

In addition, AFBF cited landowners' high level of interest in enrolling their land in the Wetlands Reserve Program (WRP) as evidence that farmers, rather than being anti-environment, are willing to help restore wetlands on a voluntary basis. The WRP, a program authorized under the farm bill, provides financial and technical assistance to landowners for restoring wetlands and retiring land containing wetlands from agriculture through a conservation easement.

There are 4,238 applications, representing some 736,909 acres, over what the government can approve with available program funding. A little over a million acres are currently enrolled in WRP.

"The enormous popularity of these programs shows that many farmers are eager to do right by the environment," AFBF said. "Farmers are virtually standing in line to contribute to wetland gains and the president's goal of 'no-net-loss.' However, at the same time farmers have taken a growing interest in voluntary conservation practices, they have been burdened by rising federal regulation of routine farming activities.

"As distasteful as the federal government regulatory stick is to farmers and ranchers, they have shown a willingness to restore wetlands when given the proper support and incentive."

The SWANCC case involved the decades-old question of just what is a wetland. The Supreme Court ruled last January that a water body must be directly connected to navigable waters to be subject to federal wetlands regulations. In response, EPA issued a proposed regulation early last year on whether to limit federal jurisdiction. AFBF worked to generate thousands of comments in response to the proposed rule, urging EPA to go forward with new regulations. However, environmental groups that perceive the gray area on the wetlands issue as a good thing generated thousands more comments opposing the new regulations.

The result of EPA's decision not to issue a new regulation will be uncertainty for farmers and ranchers, according to Don Parrish, AFBF water quality specialist, and could actually mean less protection for the environment.

"Until this issue is cleared up, farmers and other landowners have no way of knowing if and when the Corps of Engineers is going to show up on their land and penalize them for tilling, for building some farm structure, for irrigating their land or other activities," Parrish explained. "That environment creates fear and lack of trust, and it certainly does not help landowners and the government work together to improve water quality and wildlife habitat the way voluntary conservation programs do. We hope the agency will reconsider this decision."