When is a ditch just a ditch? And when is a plot of woodland without a stitch of visible water actually a “water of the U.S.”?
For federal officials working on contentious regulations to clarify what the 42-year-old Clean Water Act really means, the debate is more than a simple is-the-ditch-half-full-or-half-empty exercise.
It’s become a flash point in the debate between environmental regulators and property owners, with farmers particularly aiming to get the federal government to pull the so-called “Waters of the U.S.” rule.
The Clean Water Act requires permits for developing or discharging into covered waters, making the rule – which regulators hope to complete by next spring – of vital importance to farmers, and to landowners in general.
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“The more we look at the rule the more it really concerns us,” says Charles Shinn, the director of government and community affairs at the Florida Farm Bureau Federation.
Adds Don Parrish, senior director of regulatory affairs for the American Farm Bureau Federation, “This is a very expansive rule.”
But in the eyes of Mark Biddle, who helps oversee wetlands management at the Delaware Department of Natural Resources and Environmental Control, the confusion – and the conflict – comes when the public tries to get its head around science that to him is pretty clear-cut.
On a warm day last month, Biddle poked around a wooded area in the northern part of his tiny state. As he walked over dry and sometimes crunchy leaves, he explained that the slight depression in the wooded land was known as a “Delmarva bay.” In ancient lore, it’s known as a “whale wallow”; legend has it that primeval whales, stranded on high ground when waters receded, thrashed about enough to depress the earth.
“A landowner comes in here, he'll say, ‘It’s not a wetland – it’s not wet!’” Biddle says.
How to treat these Delmarva bays is partly the issue in the mid-Atlantic. Other regions have their own non-wet wetlands that could come under the rule’s jurisdiction.
In South Carolina and North Carolina, they’re called Carolina bays and are basically the same as Delmarva bays. The north-central states have prairie potholes; Oregon and California vernal pools; the plains from Kansas to west Texas playa lakes.
The region from Virginia to Florida also has pocosins, the Algonquin Native American word for “swamp on a hill.” A federal assessment notes that “usually there is no standing water present in these peat-accumulating wetlands”; even so, a shallow water table leaves their soil saturated for much of the year, and they can slowly drain into nearby streams.
These various formations are abundant, even after decades of being ditched and drained for agriculture. The Carolina bays, for example, numbered 500,000 in the 1950s but dropped to fewer than 20,000 by the 1990s, the federal assessment shows.
Here in Delaware, the landscape is pockmarked by about 1,300 Delmarva bays. They drain toward the east, to the Delaware Bay, or the west, to the Chesapeake. All around them are the state’s many other waterways – as well as the egrets and herons, the frogs and salamanders, that call them home.
In the height of summer, with the water gone, Biddle tries to explain why the public should be concerned about them.
“There is a good, science-based argument for why these things should be connected and part of an overall system or water network,” Biddle says.
Walking through the Delmarva bay, Biddle points to telltale signs of this not-so-obvious wetland: the base of trees, covered with green moss that stops with precision at what was the water line; the leaves, dry on top yet soft and damp underneath; a northern green frog.
“It fills pretty much every spring,” he says of the bay. There are some species – the marbled salamander for one – that couldn’t survive without the wetland.
The water in this particular Delmarva bay drains toward the huge Delaware Bay a couple of miles away.
The “Waters of the U.S.” rule was proposed by the Environmental Protection Agency and the U.S. Army Corps of Engineers. At 86 pages long, with 400 pages of supporting analyses, it seeks to clarify which waters come under the powers of the 1972 Clean Water Act and which ones don’t.
Rivers, lakes and year-round wetlands are obvious; other waters have long vexed regulators, and two U.S. Supreme Court cases in the 2000s muddied things further.
The proposed rule by the EPA and Army Corps is intended to take the standards laid out by the high court and, as they say, clear the waters.
If that was the intent, it didn’t work.
Shinn of the Florida Farm Bureau says that although the rule is designed to clarify standards laid out by the Supreme Court, it still would default to a case-by-case determination as to whether a water or wetlands formation is isolated – therefore not covered – or whether it has a significant nexus to the nearby lakes or rivers that clearly are covered.
“Once you open up these cases, where does it stop?” Shinn asks. “They fall back on whether something has the potential to impact downstream water. You can say that for any drop of water that lands anywhere. Does it have the potential? Well, yeah.”
Shinn says the EPA has taken what “was black and white and added in a whole lot of gray.”
The EPA projects that the new rule would result in a 3 percent increase in jurisdiction, a projection Shinn calls laughable; the American Farm Bureau says the methods the EPA used to analyze the issue were too limiting, seriously undercounting the number of waters that could become covered.
The rule goes on at length about what is and isn’t a ditch – “excluded ditches must be dug only in uplands, drain only uplands and have ephemeral or intermittent flow” – and why puddles weren’t included (as “puddle” is an imprecise term, “listing puddles also could have created the misapprehension that anything larger than a puddle was jurisdictional”).
The Farm Bureau is pushing hard against the rule. While the Clean Water Act exempts routine farming practices from certain permits, that exemption is filled with enough exemptions and limitations of its own that farm practices are effectively hamstrung by EPA authority, the bureau says; the new rule would “make it more difficult to farm or change a farming operation to remain competitive and profitable.”
A Republican-led House of Representatives committee recently approved a bill to prohibit the EPA from finalizing the rule, and the EPA itself has been deluged with comments – more than 205,000.
Dave Lukasek of Fort Denaud, Fla., submitted one of those. His concern: another push by the government into private property.
“If an EPA vehicle comes past and they see standing water on my front acre are they going to try to assume control? Tell me what I can and can’t do?” he says. “Now, clean water’s a good thing. But these people are out of control.”
Dennis Carlton, a citrus grower and cattle rancher east of Tampa, points out that “Florida is flat as a pancake.”
“In Florida – particularly South Florida – all systems are connected,” he says. “Maybe this is fine for a little mountain stream somewhere, but it’s not going to work down here. You can’t have jurisdiction over the whole state.”