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Waters of the U.S. Fight Recalls Days of Swampbuster Rules in Farm Bill

Waters of the U.S. Fight Recalls Days of Swampbuster Rules in Farm Bill
Farmers forced to revisit issues they thought were resolved once and for all.

It was Yogi Berra that said, "This is de ja vu all over again." To say that's redundant is an understatement, but the baseball legend made a point. Sometimes things that happened once come back around again, and sometimes they are good, but sometimes they're a nightmare.

Justin Schneider, an attorney for Indiana Farm Bureau, Inc., who specializes in working with agencies on rules related to water and water quality, would argue the current proposed EPA "Waters of the U.S." rule borders on a nightmare.

Old argument returns: Justin Schneider of Indiana Farm Bureau says farmers are facing someone wanting to regulate part of their property again, just like they faced when Swampbuster was announced in 1985.

The EPA wants to rework definitions under the Clean Water Act of 40 years ago and claim jurisdiction over a much larger amount of land as "waters of the U.S." than it has previously. The U.S. Army Corps of Engineers also has jurisdiction over waters of the U.S.

Related: EPA's McCarthy: Ditch the Myths, Not the Waters of the U.S. Rule

Jurisdiction basically means that the agencies could require permits before allowing activities in these areas. There are exemptions for certain farming operations, but even the exemptions are vague, Schneider says. Getting a concrete answer form EPA is difficult, he notes.

"We get cooperation from the Region V office in Chicago, and they at least understand our concerns," he adds. "But at higher levels within the agency they don't seem to even understand why as farmers and farm groups we're concerned about this issue."

Remember 1985 and a new 1985 Farm Bill that tied receiving program benefits to complying with Swampbuster laws? The new law meant you couldn't break out land that was considered a wetland. The Natural Resources Conservation Service proceeded to define wetlands as even wet spots in a field that you didn't till every year, at least at one point. It took years to arrive at reasonable operating procedures.

Related: A Closer Look at EPA Water Rule Proposal

"We've also been through it with Indiana agencies, and now we're back at it again," Schneider says. The areas that EPA and the Corps want to claim as federal waters and take jurisdiction over appear to be very much like the areas that NRCS wanted to consider as wetlands under Swampbuster when it was first announced.

EPA has issued a proposed rule, and is now taking comments on the rule.

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