Kentucky Farm Bureau President Mark Haney complains of "the problem" with the Clean Water Rule as defined in federal regulations effective in August (40 CFR 230.3). He claims that the case-specific discretion of the Environmental Protection Agency will be used as a power grab. He warns of "wide latitude." Perhaps we should not take his word for it and read the law.
Case-specific discretion applies only to a list of very specific geological features: prairie pothole, Carolina and Delmarva bays, pocosins, Western vernal pools and Texas coastal prairie wetlands. These waters are specifically exempt from the rule, unless it is determined one is connected to our drinking water. All the features are defined. Prairie potholes, for instance, are large features formed by glaciers. Haney attempts to liken them to the potholes caused by freezing water on the roads and to ditches.
Ditches that flow into protected waters are subject to case discretion. They may come under the act only if there is a positive finding that the specific ditch is truly discharging enough water to do harm. Almost all ditches are exempt. An ordinary farm ditch would not be subject to discretion unless it emptied into a river.
Haney says that "by that standard," a farm pond that overflows periodically would also be subject to discretion. The regulation, however, gives a list of waters that are not subject to the rule "even where they otherwise meet the terms" of other Waters of the United States definitions. These waters are not subject to discretion, ever. They cannot be considered Waters of the United States under the regulation. Included in the list: "Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log-cleaning ponds, or cooling ponds." Even if the pond is in a flood plain or adjacent to protected waters, it is not subject to the rule. If Haney's farm is draining pesticides into the water supply, the new rule is not going to stop him. Haney's assertion is very clearly incorrect on the face of the regulation, which is available for anyone to read.
Haney paints a very colorful image of rogue environmental agents grabbing land from their keyboards like so many online hackers stealing credit cards. The regulation clearly defines the requirements for a finding of the "significant nexus" required to extend protection to otherwise exempt waters. The water must "significantly affect the chemical, physical, or biological integrity" of a protected water. The regulation also states: "For an effect to be significant, it must be more than speculative or insubstantial." Most important, it must actually be water. Nowhere does the regulation extend protection to dry land. Groundwater is explicitly excluded from the definition. Haney's bizarre claim that dry land can be declared a protected water is directly contradicted by the regulation.
The Kentucky Farm Bureau is an insurance company, not a farming policy or support organization. Haney might have benefited from a consult with his regulatory compliance staff. Their professional duties include correctly reading and interpreting federal regulations. Haney grossly misinterpreted the regulation, if in fact he ever read it. His commentary seeks to scare landowners with a delusional hazard, making claims that are patently false. It's in need of washing.