Colorado ag industry pleased with EPA outreach, but still questioning proposed water rules
June 2, 2014
Colorado farmers and ranchers appreciated federal officials reaching out recently to explain portions of rules proposed by the U.S. Environmental Protection Agency and Army Corps of Engineers in March.
However, they say, there are still questions and concerns, and some will likely push for an extension of the July 21 deadline to comment on the complex proposal.
Ag organizations across the country have been taking seriously the "Waters of the U.S." rule.
The purpose of the rule, EPA officials say, is to clarify protection under the Clean Water Act for streams and wetlands, since determining Clean Water Act protection became confusing and complex following Supreme Court decisions in 2001 and 2006. For years, members of Congress, state and local officials, agricultural and environmental groups and the public asked for a rulemaking to provide clarity.
But some who requested such clarification — particularly the ag industry — aren't satisfied now, and instead see the rule as a possible expansion of the federal government's reach.
EPA officials recently toured Colorado ag operations around the state, holding meetings with local producers and representatives of ag organizations.
They stressed all of the exemptions provided to the ag industry now in the EPA's rules still would be in place under the new rules, along with emphasizing other points.
But producers, and others, say they're still concerned about "unintended consequences," largely because Colorado's state water laws are so much different and much more complex than those of other states, and the EPA's rules might conflict with them, or continue leaving questions for farmers trying to comply, when doing things such as building fences or using pesticides to control bugs and weeds along "Waters of the U.S."
"We just have a totally different way of doing things here, but the EPA tries making one-size-fits-all rules for farmers across the country," said Dave Eckhardt, a LaSalle-area farmer, whose farm was toured by EPA officials last week. "I'm just not sure it can work that way."
Under the new rules, certain irrigation ditches that carry water to "Waters of the U.S." actually would become "Waters of the U.S." — that includes two ditches Eckhardt and his family use, he said, along with many other ditches in Colorado.
Eckhardt said those irrigation ditches that would become "Waters of the U.S.," on paper, still shouldn't be impacted because of the current ag exemptions that are expected to stay in place.
"But you can't help but wonder what issues might pop up due to these other changes," he said. "Or what might happen down the road as agriculture changes.
"We've been burned more than once on this. Farming is complex, and every operation is different. I'm afraid we'll end up doing what we've been doing already — constantly checking with the Corp (of Engineers) to make sure we're not violating anything."
Colorado has unique augmentation requirements.
For someone to legally pump water out of the ground in Colorado, most wells must have an approved augmentation plan to make up for depletions to the aquifer. The pumping of that groundwater draws down flows in nearby rivers and streams — surface supplies owned and used by senior water rights holders.
A common augmentation method is building recharge ponds, which allow water to seep into the ground over time to replace groundwater depletions.
Some, like Colorado Farm Bureau Vice President Brent Boydston, questioned how recharge ponds would fit into the rules, but said after the meeting he didn't get the explanation he was looking for.
"It seemed like they just kept telling us to include it in our comments," Boydston said. "They couldn't explain a lot of this to us."
John Stulp, who serves as Colorado Gov. John Hickenlooper's special adviser on water, said during a recent meeting in Greeley that the state might push for an extension to comment on the rule.
EPA officials there said Colorado wouldn't be the first to make that request.
Still, many who took part in the conversations said they think the waters have calmed some, thanks to the EPA's recent outreach efforts.
"I'm very confident now in that the more aggressive criticism of the rule was not well-founded," said Mark Sponsler, executive director and CEO with the Colorado Corn Growers. "This isn't at all an effort by the EPA to regulate every drop of water that hits the Earth."
Meanwhile, others still have their concerns.
The American Farm Bureau Federation is pushing its "Ditch the Rule" campaign.
Additionally, Rep. Cory Gardner, R-Colo., earlier this month joined 45 members of the Senate and Congressional Western Caucuses in sending a letter to EPA Administrator Gina McCarthy, calling on the EPA to put a stop to the rule proposal that "will radically expand federal regulatory authority under the Clean Water Act."
"During an exchange I had with Administrator McCarthy … she testified that she was not familiar with Colorado water law as compared with other states' water laws," Gardner said. "It is appalling that the EPA is pushing out rules to control Colorado's water without taking into account previous state actions." ❖