Water, water, everywhere…but whose water is it? According to the Waters of the U.S. (WOTUS) rule, the government controls it all…specifically the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers. (For more information on WOTUS, visit http://goo.gl/wmRDlW).

“Is my land water?” asked Mark O’Neill, strategic communications director for Pennsylvania Farm Bureau (PFB), Camp Hill, Pennsylvania. There are many uncertainties about who has to get a permit and who does not. The Courts did not resolve that. Farm Bureau estimated that, with EPA’s widest definitions, as much as 99 percent of Pennsylvania farmland (including Somerset and Schuylkill Counties) could potentially be covered by WOTUS.

“While EPA was telling the public that agriculture exemptions would remain in place and have no real impact on the farming community, the agency included language in the final rule that (according to the new maps) characterizes as much as 99 percent of Pennsylvania’s land mass as federally regulated ‘water,’ and therefore subject to EPA scrutiny,” PFB President Rick Ebert said.

“There is a huge concern about this,” O’Neill said. “Farmers have been talking about this all year and the year before…since April, 2014. Hundreds of farmers sent in comments. But when the final rule came out (from EPA), it was even more restrictive than the proposal.”

Photo: artbyjulie/istock

The court decisions certainly serve to reinforce the notion in Congress that there are a lot of upset growers and farmers. Congress is aware. The U.S. House passed legislation with rare bipartisan support that calls for the rule to be withdrawn. The Senate had worked on its companion bill, S-1140, which would have required the EPA to withdraw WOTUS and start over with an array of stakeholders participating in the process.

As WOTUS was written, the EPA and the Corps enjoy expanded jurisdiction under the U.S. Clean Water Act (CWA). As a result, many typical farm activities may now result in “discharges” of “pollutants,” the U.S. Farm Bureau said. Such activity will put the farmer afoul of Federal law.

WOTUS tells farmers how they can use their land and imposes permitting requirements to engage in routine farming practices, which may or may not include plowing or terracing. Whether a farmer or other landowner agrees with the rule’s designation, if the law stands, they must adhere to what the new law defines as wetlands, Farm Bureau said.

The more recently a farmer started farming (especially for any farming begun after 1977), the less likely the farm operation is to get an exemption for normal farm practices like plowing, cultivating, soil ripping and the like.

Farmers face fines up to $37,500 per day for violation of the Act. Pennsylvania Farm Bureau encouraged its members in a campaign to lobby their U.S. senators from Pennsylvania. The American Farm Bureau Federation figures it has 59 votes for repeal. However, 60 are needed to make it “bombproof.”

Farmers are not the only ones opposed. Associations of county commissioners, builders associations, extractive industry political action committees and township supervisors all sent people to Washington to speak against the measure.

Some observers feel that WOTUS will apply only to major changes to waterways. For example, if a grower were to dam a stream to form a farm pond or to reroute a creek for some reason, WOTUS would apply. While that seems reasonable, others fear it would go much deeper.

If there is water on your farm that flows into any other waterway, it could be considered a WOTUS. Obvious waters that are in any way navigable or that flow directly into any navigable or interstate waterways definitely are WOTUS.

On top of that, any wetlands that directly adjoin any such river or creek could be considered WOTUS. This includes what are known as “ephemeral drains,” essentially meaning water that “lasts only a short time.” In this case, it means runoff areas that show up after rains but dry out quickly. If water from an ephemeral drain runs to a waterway covered in the regulations, it is treated the same way that a year-round stream is considered. Add to that anywhere on a farm that the Army Corps or the EPA finds a “significant nexus” to downstream waters.

Or will it? Many knowledgeable observers note that the CWA itself, defines intermittent flow channels and conduits as “point sources,” not “navigable waters.” That would make a huge difference. The latest round of WOTUS regulations is the result of two Supreme Court decisions referring to CWA, the more recent being Rapanos v. United States, 547 U.S. 715 (2006). The majority of Supreme Court justices held, “The phrase ‘the waters of the United States’ includes only those relatively permanent, standing, or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams,’ ‘oceans, rivers, [and] lakes,’ Webster’s New International Dictionary 2882 (2d ed.), and does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” (See FARMING, February 2015.)

Photo: Kenneth Wiedemann/istock

New England: organic, organic, organic

There’s a lot to be positive about in the New England region. The maple syrup sector is expanding with producers poised to create more syrup and increasing public awareness for the pure sugar. But that’s not the only thing pure and natural thriving in the upper Northeast.

“The first misconception about organic sales in New England is that (it’s just) vegetable and fruit. It’s also milk and maple syrup.” said Gary Keough, state statistician for the USDA-New England region. “Those are the big dollars in production in the New England states.”

According to the most recent USDA Organic Survey, New England area (Connecticut, Maine Massachusetts, New Hampshire, Rhode Island and Vermont) organic farms sold $197 million in product in 2014, up 45 percent since 2008. The region accounted for 3.6 percent of U.S. organic sales.

The future looks bright as nearly a majority of producers surveyed reported they will increase organic production in the next five years. The New England organic farms (68 percent) also moved their product via direct market sales (community supported agriculture, farmers market, farmstands).

Keough mentioned there’s a steady expansion going on in the organic business regionally with as steady flow of newcomers entering the business market. “The value of organic sales continues to go up,” he said.

Vermont remains the organic force with more than $92 million in sales followed by Maine ($54.2 million), Massachusetts ($24.8 million), New Hampshire ($20.8 million), Connecticut ($3.6 million) and Rhode Island ($902,000).

Nursery and greenhouse crops (fruit, vegetable in the open/under protection, maple syrup) showed to be a major force source of sales for most states and positive looking overall for the new year, Keough said.

“The other major ag industry in New England is nursery, greenhouse and sod, if you look at the cash receipts, he said. “They are far and away number one in Connecticut and Massachusetts and considering the price of milk, it’s number two in Vermont and New Hampshire.

Additional contribution provided by Curt Harler.