KS WOTUS Panel Points to Ag Concerns

Midwest, Southeast Livestock Producers, Farmers Outline WOTUS Definition Concerns to EPA

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The EPA hosted two waters of the U.S. roundtables this week, including one in the Midwest and a second in the Southeast. (DTN file photo)

LINCOLN, Neb. (DTN) -- From Aaron Popelka's viewpoint, for about one year, the Trump administration's Navigable Waters Protection rule helped to expand conservation efforts in Kansas.

The Republic County rancher and vice president of legal and government affairs for the Kansas Livestock Association said during an EPA-hosted waters of the U.S. Midwest roundtable on Monday that he disagreed with EPA's assessment that the previous rule left more waters unprotected.

An agency analysis of the Trump rule concluded that about 70% of determinations conducted on ephemeral waters were found not to be jurisdictional. As a result, the EPA concluded the Trump rule allowed more pollution to go unchecked.

"I think what happened may not necessarily indicate the amount of pollution that is happening," Popelka said.

In the state of Kansas, he said, about 75% of determinations obtained while the Navigable Waters Protection rule was in place involved conservation activities such as grass waterways, terraces and livestock watering projects to help improve water quality.

"If the agency believes that most of these negative jurisdictional determinations should be regulated, all of a sudden that's going to have a chilling effect on those conservation projects that were in those negative determinations," he said.

"We supported the Navigable Water Protection rule, particularly because it gave some bright lines so producers could decide: Do I need to talk to EPA, or do I need to talk to the state regulatory agencies? And I think we have some concern about how broad things can grow."

Shawn Tiffany, incoming president of the Kansas Livestock Association and owner and operator of Tiffany Cattle Company, said his company knows firsthand the importance of protecting water resources.

Tiffany's company operates feedlots in Kansas that finish 70,000 to 75,000 head per year.

"We've been planting and grazing cover crops since 2010 and have had continuous coverage across all of our crop acres since 2019," Tiffany said.

"We do these things in order to mitigate erosion and also harvest rainfall during our intermittent running seasons. There's a misconception that CAFOs (concentrated animal feeding operations) don't care about the environment, but that couldn't be further from the truth. Changes in practices, whether it's adoption of new management strategies, are much better incentivized by education rather than regulation."

Because environmental situations vary from region to region, he said, there's no "practical way" a federal agency could "adequately regulate the myriad of environmental concerns" at a local level.

"Ultimately, in my own operation, more regulation does not change our environmental practices," Tiffany said. "But it does add to the amount of administrative work we have to submit in order to report that we are staying in compliance."

Jason Solomon, wastewater technician with the Kansas Rural Water Association, said he's concerned about small towns in Kansas and how expanded federal regulations would affect them.

"The small towns, they're having a hard time making ends meet, just to keep the cities going," he said. "They're all dwindling, and then these regulations -- if there were even more regulations -- they wouldn't be able to survive."


The EPA hosted a second WOTUS roundtable Tuesday morning, based in the Southeast.

After this week, EPA has five remaining WOTUS panels scheduled for the remainder of June.

On Tuesday, Ellen Gilinsky former associate deputy assistant administrator for water at EPA from 2011 to 2016, told EPA a new definition needs to clarify what farms are allowed to do without raising Clean Water Act alarms.

"Based on my experience as a consultant getting permits and as a regulator of developing permitting programs, what we need is a clear and consistent federal definition that establishes baseline protection for waters within each state," she said.

"At the same time, this clear definition must be able to be applied without lengthy studies."

When it comes to agriculture, Gilinsky said, a new WOTUS definition needs to make clear what farmers are allowed to do without concern of regulation.

"One is a definition to recognize that not all ditches are created equal," she said. "Any different definition of waters should be clear that ditches that function as tributaries are considered WOTUS, and ditches that are draining a highway or in a farm field are not necessarily WOTUS.

"I do want to also clarify and somehow become clear in the definition, even though it's an implementation issue that is not covered in the definition, is that, in general, agricultural activities are exempt from section-four requirements.

"So, therefore, even if you didn't have a WOTUS area on your farm, you locally would not need a permit to farm that area, with a few exceptions. So that issue came up to the forefront in the 2015 Clean Water rule. And I think we need to make sure that WOTUS definition is so clear that false arguments cannot be made," Gilinsky said.

Gilinsky said all farmers want good water quality for their crops.

"A consistent definition is also important to do a level playing field across the country," she said.

Some states like Virginia can fill the gap where federal definitions don't necessarily cover all wetlands, for example.

"But a lot of states can't do that," Gilinsky said. "They don't have the money to implement their own program, or they have rules that say they cannot be stricter than the federal rules. We need a strong WOTUS definition that all the states can use."


Brent Wills is co-owner of Bramble Hollow Farm in Montvale, Virginia, a pork and poultry operation. Wills also consults with farmers on soil health and regenerative agriculture.

Wills told the panel that part of his work involves helping other farmers to conserve wetlands by focusing on upland practices with downstream water health in mind.

"What I find is that farmers don't realize how important the water resources on their farm are to them," he said. "They might think about, you know, how their cattle can access the stream or how much water they can irrigate for the crop, but they really don't think about how water fits into the entire ecosystem."

Wills said clean water is fundamental to the success of his farm and other farms.

"Most farmers worked really hard to make sure that (they are) being good stewards of the land and good upstream neighbors," he said. "If we have limited waters protections, what we've seen in the last 20 to 30 years, we've lost a significant amount of upland femoral and wetland areas that are real recharge areas for groundwater system.

"If we don't have those recharge areas, and we're getting the extra intensity on the storms, heavier rainfall events and (in a) shorter period of time, having good waters protections in place to make sure that we keep those areas for recharge is really only going to make our downstream water quality and quantity issues better."

Read more on DTN:

"Western Ag Raises Concerns About WOTUS," https://www.dtnpf.com/…

"Farmers to EPA: Need Partners, Not Regs," https://www.dtnpf.com/…

"WOTUS Roundtable Panelists: Regulate Ag," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neely@dtn.com

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Todd Neeley