As EPA tries to regulate water, ranchers, counties push back

WASHINGTON – In the eyes of rural Minnesota, the trouble with a proposed Environmental Protection Agency rule could be summed up by some ditches on 32-year-old Miles Kuschel's cattle ranch in Cass County.

Most of Kuschel's ditches were created in the 1930s and they don't flow anywhere. They're just pools of standing water in low-level lands where his cattle linger while grazing and take an occasional sip.

Kuschel, who stays atop local regulations, says he has no idea whether federal officials would consider these various pools "waters of the United States" — a battle of definitions that has blossomed into a full-blown war on Capitol Hill between environmentalists, Midwestern rural Democrats and counties and ranchers.

In writing the rule the EPA was attempting to clarify questions sparked after two Supreme Court decisions in the 2000s about federal water regulations. The agency's proposal asserts regulatory authority over wetlands, streams, tributaries and other waters that could affect protected waters "downstream."

Kuschel worries the rule may require him to obtain a bevy of permits for maintaining cattle on his property.

"We don't know if a permit would be required for them [cows] to drink out of it, to cross the stream, to graze near the stream, to graze within 100 feet of the stream," Kuschel said. "We are the ones who have to live and work and abide by these rules. We need clarity."

So many people are up in arms about the proposal — including DFLers Rep. Collin Peterson and Sen. Amy Klobuchar — that EPA officials say they will issue a final rule in coming weeks that attempts to straighten out what they put out before.

Klobuchar said she was seeking a pragmatic compromise, particularly over the "ditch issue."

"We have ditches everywhere, it's not just farmers, all these county commissioners and county administrators that do road repair and bridge repair. … They are just county people who are trying to grapple with making repairs," she said. "We want to give them [the EPA] a chance. … They made mistakes."

EPA officials say they were attempting to clear up confusion caused in 2006, when nine Supreme Court justices issued five different opinions about the federal government's responsibility for water.

"I think a critical component to this is to remember this just applies to water," said Ken Kopocis, who heads the water office at the EPA. "For most activities, whether it's a farmer or a rancher or even a developer, unless they're planning to pollute it or destroy it, the Clean Water Act doesn't affect them."

Kopocis says the final rule, which should be issued by June, will address the many concerns aired by farmers.

Chris Shoff, president of the Association of Minnesota Counties and a commissioner in Freeborn County, says that doesn't necessarily help.

He worries that small counties like his will be saddled with more bureaucracy and paperwork — even with EPA clarification.

"I think the big thing is that we're just looking for some common-sense and practical approaches," Shoff said. "In my county, we do things with our ditches. I think this would be adding another level to some of the projects and slow things down."

Earlier this month, the House passed legislation halting the implementation of the rule. The Senate is toiling on its own version. The Obama administration has threatened a veto if it gets to the president's desk.

Peterson, who represents Minnesota's agricultural interests on the state's western flank, said the best-case scenario for his farmers is for the EPA to do nothing. He has held three meetings with EPA chief Gina McCarthy over this issue.