Environmental Protection Agency officials traveled to Sunflower County, Miss., to see first-hand how conservation practices are improving water quality, but the conversation quickly shifted to a proposed rule change in the Clean Water Act.

“You do have friends at the EPA,” EPA Regional Administrator Heather McTeer Toney told growers attending the June 16 farm tour. “We couldn’t have come at a better time to see how critical this issue of water control is to the Mississippi Delta. The things that we’ve always done in the Delta for years, we will continue to be able to do. We highly respect those farming practices, and we understand how critical the ditches are to your farming practices.”

EPA and the U.S. Army Corps of Engineers recently proposed a joint rule to clarify protection under the Clean Water Act for streams and wetlands that form the foundation of the nation’s water resources. According to EPA officials, “Determining Clean Water Act protection for streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006.

Ellen Gilinsky, senior policy advisor in EPA’s national Office of Water, said, “If you don’t need a permit today, you don’t need a permit tomorrow. I can’t say that enough. The rule does not change what a rice field is. Even if that field was considered jurisdictional, you could still do what you want to do because it is a normal farming practice.”

Permitted practices

Gilinsky added, “Anything you could do before, you’ll be able to do after the rule is enacted. That’s the easiest way to explain the Waters of the U.S. rules.”

While Gilinsky’s statements attempted to put producers’ fears of the proposed rule to rest, there is still concern that the proposed joint rule under the Clean Water Act leaves out several common conservation-related farming practices. These murky areas could cause producers to inadvertently run afoul of the regulations.

Chip Morgan, executive director of Delta Council in Stoneville, Miss., gave voice to the area’s agricultural producers, saying, “Our biggest concern is when this water is not moving, it becomes a vast regulated wetland. Under the rule as we interpret your proposed rule, if it flows, your EPA ‘clarification’ extends the jurisdiction to it and consequently, activities in and around those waters must be permitted.”

That shouldn’t be a concern, according to Gilinsky. “Normal farming practices are already exempted,” she said. “Just because they are not listed in the regulation does not mean they are not exempt. We can certainly add to that list if it would be helpful.”

Coahoma County, Miss., producer Bowen Flowers also spoke to growers’ concerns, saying, “We are worried we are going to do something wrong, and it should not be that way. When we need to get the water off of our fields, we need to do that now.

“Those ditches are our lifeblood. We’ve got to get the water off,” he said.

“We don’t think the EPA needs to be involved in those normal farming practices on your farm. That’s really the intent of this rule, and ditch work has always been exempt,” said Larry Lincoln, public affairs specialist with the EPA.

‘Farmed wetlands’

Farmed wetlands, which get inundated with water at least 14 days every other year during the growing season, are also of concern regarding the proposed regulation. Posed was the question of whether or not off-site activities in tributaries that are not currently permitted will now require permits?

According to Kevin Kennedy, area conservationist with the USDA Natural Resources and Conservation Service, the answer to that question is no. “Nothing has changed for farmed wetlands. A lot of our farmed wetlands, since being delineated as farmed wetlands, may have increased in size because the tributaries are cleaned out. You can continue those activities without a permit as long as you don’t do anything to improve the drainage of that farmed wetland. The new rule will not have any impact,” he said.

McTeer Toney, a native of Greenville, Miss., added, “The normal farming practices that we’ve always done are still protected. We are not trying to change what farmers are doing. The new rule does not change that.

“For me, this is one of the reasons that I wanted to get back on the ground in the Mississippi Delta. It’s important that EPA officials understand how the topography of the ground really affects farming practices in the Delta. It is really important to get our entire team of people down here.”

Kennedy told farm tour attendees that the NRCS consults with the U.S. Army Corps of Engineers concerning regulated conservation practices, but he admitted that every situation is different. “The message that we are hearing is that we need to make sure we are all on the same page,” he said.

The public comment period on the proposed Clean Water Act rule was just extended through Oct. 20, 2014. More information can be found at EPA Documents.

McTeer Toney added, “We welcome all comments about the proposed rule change. Your comments help us develop the language of these regulations.”