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Collins standing up for farmers in fight with EPA over 'navigable waters' rule change

By Howard B. Owens

A proposed rule change by the EPA regarding "navigable waters" could have a serious impact on agriculture and local taxpayers, Chris Collins said today during a press conference at Stein Farms in Le Roy.

He was joined by Dean Norton, president of the New York Farm Bureau, Dale Stein, owner of Stein Farms, and County Legislator Shelly Stein.

Norton said farmers have been fighting the proposed rule changes for years; and years ago even won a court case on what Congress intended when it passed the Clean Water Act in 1972.

"The Supreme Court has ruled that Congress was very specific at that time on what navigable water was," Norton said. "If you can run a canoe down it, if you can have commerce effected on that water, then it's navigable. A pothole is not navigable. A pond is not navigable. The puddle out there in the drive way is not navigable."

The proposed rule change -- being pushed by the EPA and the Army Corps of Engineers -- would redefine "navigable water" as any body of water that stands for at least four days and could eventually drain into a navigable waterway.

"If Dale Stein wanted to regrade his driveway to make it level and get rid of the puddles, he would have to call the Army Corps of Engineers and get a permit," Collins said. "That would probably cost him $250."

Norton said the EPA is using a scientific study to back its position that hasn't even been peer reviewed.

If the proposed rule changes go through, then any agriculture work affecting what the EPA has classified as navigable waters would have to be approved and reviewed, at great cost and delay to farmers.

The same rules would apply to cities, villages, towns and counties.

"(The rule change) is also going to effect everyone who is a taxpayer and I think they're (the Administration) going to find they're on the wrong side of the issue," Norton said.

Dale Stein said he's already going through a similar issue with land the farm leases from another property owner. Because some government official signed the wrong piece of paperwork 29 years ago, Stein is unable to open some irrigation ditches needed to properly, in an environmentally sound manner, farm the land.

"Now we're in the process of trying to get through all that so we can farm it correctly," Stein said. "It's just another giant bureaucracy to try and get the proper permit, and if somebody makes a mistake along the line, our children 30 years from now could be paying for it."

The proposed rule change could put farmers out of business, Shelly Stein said.

"Should the EPA be successful in gaining this rule change to classify each temporary puddle as navigable water, our daily farm operation activity would stop," she said.

The good news is public pressure works, Collins said.

He's already received bipartisan support for a letter he's drafted to the EPA and the Corps of Engineers opposing the rule change. More than 160 members of Congress have signed on and he believes, with public support, more will follow.

"There's no doubt that when you can raise the awareness on any issue, the chances of stopping the absurdity of it dead in its tracks is improved," Collins said. "I've got at least a level of optimism that we an get them to re-look at this rule."

Scott McCumiskey

(33 U.S.C. 1251 et seq) http://www.epw.senate.gov/water.pdf

More importantly the Supreme Court Decision in Rapanos v. US, 547 US 715 - Supreme Court 2006. Where the use of the term "significant nexus" to navigable waters was developed as the test. Of course the term was not defined in the court decision and the EPA along with the US Army Corp of Engineers were left to define the term for regulation purpose. That's how they are connecting "temporary Puddles"

Federal Wetland Protection (although never mentioned in the original act) needs to be removed from the Clean Water Act and have its own unified legislation. This new legislation should take into consideration the provisions of the Fifth Amendment and "taking of private property"

Apr 16, 2014, 2:39pm Permalink
Debbie Pugliese

Thank you Scott...

So its basically left to their interpretation and 234 pages of legalese as opposed to a cut and dry "this is okay" and "this is not okay"?

Every spring my front lawn turns into a "temporary puddle" LOL...but I dont think you could ride a canoe through the ditches on the street so now sure how they would interpret it.

From what i can tell from other links i have seen it was something EPA brought up to stop toxic things from draining into navigable waterways that lead to rivers, lakes, oceans, marshes etc?

Apr 16, 2014, 3:01pm Permalink
Scott McCumiskey

Well they would call it "point" source pollution. But, the concern is that "dredge and fill" activities could release sediment into the navigable waters. Sediment being loosely defined as a point source pollutant.

Apr 16, 2014, 4:14pm Permalink
John Woodworth JR

Heck, everything the government does seems to be left to interpretation Debbie. I have mix feeling on this matter. I know years ago up by Black Lake, farmer fields drained into small creeks or into storm drains leading to the lake. This caused Black Lake to be infected by the raw sewage from farmer's fields, which caused the fish to be infected with some small worm. They stopped the issue but, I do not know the actions the EPA or the farmers took to cease that issue.

Black Creek runs through my property and is polluted with sewage used for fertilizer and pesticides. I believe Black Creek runs into Genesee River which runs into Lake Ontario.

Look at other businesses such as, car washes, oil change shops and auto mechanics shops, that have to have a special tank to keep pollutens out of the waterways. Should farmers follow the same rule? Not everything in their fertilizer is safe to go into waterways. This is an hard issue to tackle and solve without causing a hardship on farmers and their consumers.

Apr 16, 2014, 5:55pm Permalink
Timothy Hens

These proposed regulations will have a significant impact on routine maintenance activities undertaken by counties and towns such as ditching and installing or replacing driveway culverts. Under the new regulations, a joint permit from USCoE and DEC would be needed before and maintenance activities in a roadside ditch could be performed. The permits are not easy to apply for and take several weeks and often months to obtain and often come with significant restrictions.

The language in the proposed regulations can easily be interpreted to include seasonal or temporary puddles which would add an entirely new dimension to construction permitting.

The added regulations wouldn't just affect municipalities, they would also apply to private property owners and farmers. Many private ditches and swales are already not being maintained which causes poor drainage and flooding now. Adding another level of permitting which would be complex and beyond the capability of the average citizen will make private maintenance of drainage nearly an impossible task. The failure of private drainage off of municipal right of ways would ultimately force government to form special drainage districts so that drainage may properly be conveyed. The special district would be required to pay for the maintenance, essentially creating another small layer of government. None of us need that.

Now as Woody stated, there is an issue with non point source runoff polluting our rivers and lakes, but expanding the definition of "navigable waters of the United States" is a Pandora's box.

Apr 17, 2014, 1:01am Permalink
Debbie Pugliese

Thank you very much for that info Mr. Hens. It would have been nice if Mr. Collins had explained it as you did instead of blathering on with useless political rhetoric.

I understand the logic behind such rules as these...no one wants toxic substances being spread by water drainage. However when the size your bank account and the influence it can buy with our politicians for hire (i.e., Duke Energy and their coal ash pollution in the N. Carolina) can determine whether you actually need to follow these rules it what disgusts me.

The Steins and people like them will suffer for being caught up in a 234 page law that is written to such extremes to try to close the loopholes the Dukes of country slide through....but the Duke's just pony up the campaign dollars and slide.

Apr 17, 2014, 9:16am Permalink

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