AUGUSTA — A Trump administration proposal to roll back controversial environmental regulations on smaller streams is eliciting cheers from some Maine farmers but jeers from conservation groups that fought for years to secure more stringent water protections.
The Environmental Protection Agency and the Army Corps of Engineers have proposed dropping an Obama administration policy that protected many tributaries, intermittent streams and wetlands under the Clean Water Act. The June 2015 policy sought to clarify the scope of the 1972 Clean Water Act – a legacy of Maine’s late Sen. Edmund Muskie – after years of debate and conflicting court opinions over the federal government’s ability to regulate pollution and discharges into smaller waterways.
But courts suspended the Clean Water Rule within months as agricultural states and organizations such as the American Farm Bureau accused the EPA of a regulatory “power grab.” And soon after taking office, President Trump directed the EPA to begin the lengthy legal and regulatory process to dismantle rules he called “one of the worst examples of federal regulation.”
Maine agriculture groups and conservation organizations were on opposite sides of the Obama administration regulations – and still are as the EPA moves to return to the pre-2015 interpretation before crafting new rules. The EPA is accepting public comments on the proposal through Aug. 28.
“Who knows what is going to change with the current review underway, but it seems unlikely that the rules are going to be any more protective of headwater streams,” said Jeff Reardon, Maine brook trout project director with Trout Unlimited. “The big issue is water flows downstream … and the vast majority of those stream miles are in headwater streams. And if you want to protect those bigger rivers, you need to protect the headwater streams.”
Maine farmers, meanwhile, are expressing relief about the rollback of rules that caused uncertainty and confusion.
“My hope is the EPA is going to find a good balance between protecting the trout populations, but also protecting the farmers because they are both equally important to the environment and to our state economy as well,” said Julie Ann Smith, executive director of the Maine Farm Bureau.
The 45-year-old Clean Water Act actually contains broad exemptions for agriculture. For instance, farmers are not required to seek permits from the EPA or Army Corps for discharges connected to plowing, seeding, cultivating, harvesting or minor drainage as long as the activities are “associated with normal farming.” Landowners would be required to obtain a permit – a potentially lengthy and costly process that could involve mitigation – if they wanted to, say, fill in a wetland to create more farm acreage or build new drainage ditches.
The Clean Water Act has largely been used to enforce discharge permits on so-called factory farms, or “confined animal feeding operations,” or agribusiness operations.
Conservation groups accused large agricultural organizations, such as the American Farm Bureau, of misconstruing the 2015 rules to scare farmers into action. However, some Maine farmers raised concerns that the 2015 rules could affect Maine’s growing agricultural industry as farmers try to convert land back into agriculture.
And it’s not just farmers and environmentalists engaged in the debate.
Four of Maine’s breweries – a growing industry that contributed an estimated $228 million to the state’s economy last year – are urging the Trump administration to keep the 2015 rules.
“We oppose any changes to the Clean Water Rule that would weaken the protections it established for critically important waterways like small streams and wetlands,” Rising Tide Brewing Co., Baxter Brewing Co., Allagash Brewing Co. and Maine Beer Co. wrote in a July letter to the EPA and the Army Corps. “Our craft breweries depend on those waterways to provide the clean water that we use to brew our beer.”
Sheep in a pasture at North Star Sheep Farm at Collyer Brook Farm in Gray. North Star leases the land at the Gray site and maintains it. Under current law, farmers must get a permit to fill in a wetland to create more farm acreage or build new drainage ditches.
It is unclear what changes, if any, will result on the ground in Maine from Trump’s decision to rescind a Clean Water Act interpretation that was never really implemented. Maine already has strong anti-pollution laws in place to protect streams and rivers, although Reardon with Trout Unlimited said the federal rules would provide “a backstop” against future attempts by the Legislature or the governor to whittle away at those protections.
Trump’s many opponents in the environmental and scientific communities regard the Clean Water Rule as merely the latest example of the administration’s attempts to systematically dismantle environmental protections enacted by President Obama and his predecessors.
National agriculture organizations in concert with Midwestern and Western farmers – who are more dependent on irrigation ditches and canals – led the fight against the 2015 rules, although industries involved in fossil fuels and real estate also were vocal opponents. But even in Maine, where most farming is smaller-scale, farmers were concerned enough about the rules that Obama’s EPA administrator, Gina McCarthy, held a roundtable discussion with farmers during a visit to the state in November 2015.
At the time, McCarthy was facing not only a bevy of court cases challenging the rules, but also House and Senate votes disapproving of the rules. McCarthy acknowledged that the EPA needed to do a better job of explaining what the Clean Water Rules were and weren’t, especially to farmers concerned that irrigation ditches would suddenly become regulated streams.
“The Senate is right: The proof is in the implementation,” McCarthy said while visiting Smiling Hill Farm in Westbrook. “And we really need to be very clear about how the Army Corps and the EPA are going to implement this rule.”
Among those who attended McCarthy’s roundtable discussion was Lisa Webster, president of the Agriculture Council of Maine and co-owner of North Star Sheep Farm in Windham.
Webster, who raises about 2,000 sheep for wool and meat, said her farm and most others take careful steps to protect nearby streams, rivers and lakes. After all, Webster said, farm families depend on those same water bodies for drinking water, fishing, swimming and other purposes. But Webster said the 2015 rules would have been problematic for Maine because they could have required the state’s many small farms to meet the same costly regulations as larger industries or agriculture operations.
“I’m really pleased the EPA is going to keep the status quo because … the rules were adequate for protecting small waterways,” Webster said.
Darin Hammond, who works for one of Down East Maine’s larger wild blueberry growers but was speaking for himself, expressed concerns that the 2015 rules were overly broad and could include standing waters. He also worried the confusion around the rules would invite more lawsuits against farms from environmental groups.
“The Clean Water Act prior to 2015 was pretty restrictive,” Hammond said. “And if you look at what has happened over the last 30 years, the waters have become much cleaner.”
North Star Sheep Farm at Collyer Brook Farm in Gray. Staff photo by Shawn Patrick Ouellette
However, environmental and conservation organizations contend that the rules are not as comprehensive as they need to be.
Nick Bennett, staff scientist at the Natural Resources Council of Maine, pointed out in comments filed with the EPA that more than 400,000 Maine residents use drinking water that has surface water as its source. If smaller streams and tributaries are not protected, Bennett said, it could jeopardize public water supplies and the larger lakes, streams and rivers that are critical to Maine’s outdoor economy.
In an interview, Bennett said the Trump administration should let the rules work their way through the courts.
“They have no scientific justification for what they are doing,” Bennett said. “It just seems arbitrary. It took years to put these rules together and a lot of experts were consulted. But this just seems like a rollback for the sake of a rollback.”
Jack Williams, senior scientist with Trout Unlimited, said the EPA and Army Corps held hundreds of meetings and received thousands of comments before instituting the 2015 rules. Williams, who is based in Oregon, said there was never any attempt to capture agricultural irrigation ditches or normal farming activities in the rules.
Williams said he believes the Trump administration is trying “to throw the protections for all of these small streams and waters around the country.” Those streams, in addition to supplying an estimated one-third of the nation’s water supply, provide a large percentage of the insects and small critters that feed bigger fish in rivers and lakes.
“I do know that it is going to be critical that people have an awareness about what is going on,” Williams said. “People need to understand the threats to water supplies and to the streams and rivers.”
Kevin Miller can be contacted at 791-6312 or at:
Twitter: KevinMillerPPH
Send questions/comments to the editors.
