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How the Federal Clean Water Act Rule May Impact Prairie Pothole Country

On one extreme, today’s announcement of the final rule for the Clean Water Act is being hailed by federal agencies and environmental groups as ensuring clean water with no or little pain for farmers.

On the other extreme, it’s being condemned by some farm groups as an extensive and unprecedented federal land grab.

In reality, how this rule affects farmers lies in the details.

Prairie potholes are one example. These low depressional areas pock numerous fields across Upper Midwestern states like North Dakota, South Dakota, and Minnesota. They’re vital for waterfowl and also filter pollutants from contaminating groundwater. 

On the flipside, they can be excellent farmland when dry and can be your field’s best yielding areas during drought. 

Just how these will be impacted under the final Clean Water Act rule devised by the Environmental Protection Agency and U.S. Army Corps of Engineers remains to be seen. 

What EPA Says 

EPA officials said in a statement the rule clearly defines and protects tributaries that impact downstream water health. The statement says the rule states that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection under the Clean Water Act.

This seems to bode well for prairie potholes that hold stagnant non-flowing water. 

On the other hand, though, the statement says science shows that specific water features can function like a system and impact the health of downstream waters. The rule protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.

In this case, the detail lies in the pothole’s impact on downstream waters. 

Ken Kopocis, deputy assistant administrator of EPA’s Office of Water, says the final rule was based on information that included 1,200 peer-reviewed scientific studies and input by a science advisory board. Through this process, federal agencies evaluated regional waters (such as prairie potholes) and their significance on downstream water. 

“We looked at the science, and the science tells us they act in combination with each other as to how they affect downstream water,” says Kopocis.

That doesn’t mean all prairie potholes, though, affect downstream water, he says. Potholes can exist in different densities and perform different functions. Collectively, though, some linkages of prairie potholes can impact downstream waters, he says. 

“We will look at a group of potholes, and evaluate them as a group as to whether they have a significant effect and if they are jurisdictional (under the Clean Water Act.),” says Kopocis. “In some watersheds with prairie potholes, we may find they have a significant effect,” he says. Others, though, may not, he adds. 

Can You Farm Them?

So what happens if you farm fields with potholes that are found to significantly impact downstream water? 

“We expect farmers be able to carry on farming as they have under existing (Clean Water Act) rules,” he says. This means they will be able to continue with practices that are now exempt from the Clean Water Act, such as planting and moving livestock. 

“We were careful not to expand the scope of the Clean Water Act into a farmer’s field,” he says. “It does not impact private property rights,” he adds. 

Still, this is a tough sell to many farm groups. 

“We are studying what they put in the final rule,” says Wayne Smith, executive director of the South Dakota Farm Bureau. “We’re very concerned as to if they consider (prairie potholes) as one or if they are hydrologically connected.”

Concerns exist if connected potholes are found to impact downstream water, and if farmers will need to have permits to spread fertilizer or spray in those fields Concerns exist as to the cost of permits, or how long it would take to get one. 

“There are just a lot of unanswered questions,” he says. 

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