Standing in a field of dirt, Derek Sawyer is for clean water as much as the next person downstream.

“We do everything we can to protect the water that runs across our land and our ground,” the McPherson County farmer said.

And, most of the time, this field doesn’t hold water. He is able to raise crops and farm it. But in the event of a heavy rain, water runs across it, flowing to a nearby man-made ditch that eventually flows into the Little Arkansas River.

So, when Sawyer and other Kansas farmers learned the Environmental Protection Agency, along with the U.S. Army Corps of Engineers, had proposed a Clean Water Act rule that could reclassify ditches, gradient terrace channels, intermittent streams or even flooded fields as a federal waterway, they began to take action.

Sawyer, a fourth-generation farmer, knows the land better than anyone.

He has implemented a number of best management practices with the help of the state to keep the region’s waters clean. And, while this swale has never been an issue before, he wonders if it could be defined as a “Water of the United States” under the proposal.

For landowners, the rule could mean paying for more permits, as well as the lengthy process it might take to get them for time-sensitive farming practices. It could mean the government telling them the amount of nutrients, as well as herbicide, pesticides and chemicals, they can use on crops or where they can build fences and buildings. Meanwhile, opponents say the Kansas Department of Health and Environment already oversees operations on farms and ranches.

“Most farmers have been on their place for numerous years,” Sawyer said. “We treat different parts of our farm differently because they are different. A cookie-cutter method by the federal government could do more damage.”

“To think someone in Washington, D.C., knows better than we do isn’t realistic,” he said.

Under fire

The EPA is under fire by many involved in the nation’s agriculture industry, including Kansas farmers, with its proposal to clarify the 1972 Clean Water Act for streams and wetlands. The EPA proposed the rule in March and still is reviewing comments, which will be taken through Oct. 20.

From the agriculture industry, the federal officials are getting an earful, including from groups like the Kansas Farm Bureau, in which Sawyer is a member.

Ryan Flickner, the KFB’s senior director of public policy, said there have been two Supreme Court rulings, the latest in 2006, limiting the EPA and Corps authority under the act to waters that are navigable or have a “significant nexus” to navigable waters.

But the fear, he said, is that the agency is trying to rewrite the regulations, which would allow it more control over more waters, despite both Supreme Court decisions.

Under the EPA proposal, “any ditch, stream, field terrace, wetland – if it has a bed, bank and a high water mark, it is a water of the U.S.,” Flickner said.

In early September, the House approved a bill, 262-152, to block to rule. Thirty-five Democrats joined 227 Republicans to support the bill. The measure, however, is not expected to advance in the Democratic-controlled Senate.

In any case, according to The Associated Press, the White House has threatened to veto the bill, saying the rule is needed to ensure clean water for future generations and to reduce regulatory uncertainty. More than 115 million Americans get their drinking water from rivers, lakes and reservoirs that are at risk of pollution from upstream sources, the White House said.

Meanwhile, even the National Association of State Departments of Agriculture unanimously asks for the rule to be stopped.

Even Kansas Gov. Sam Brownback and his administration have said they would fight the proposed rule, with the governor noting he thought states should regulate water quality.

Brownback added during a recent campaign stop in Wichita that changes would dramatically expand the EPA’s authority over water in Kansas and could threaten agriculture and oil and gas extraction, according to The Associated Press.

According to the EPA, the rule doesn’t expand the agency’s authority and actually scales back its scope to the number of waterways the agency regulated in the 1980s. EPA Administrator Gina McCarthy visited Kansas City in July to stop the myths, as she put it.

According to the EPA, the two Supreme Court rulings caused the act to become confusing and complex and the agency wants to clear things up.

According to the agency, seasonal and rainfall streams and wetlands near waterways will be protected, but waterways that may have more uncertain connections with downstream water and protection will be evaluated through a case-specific analysis of whether the connection is or is not significant.

Part of the EPA proposal is an interpretive rule that details items that are exempt from the Clean Water Act. According to The Associated Press, McCarthy said during her Kansas City trip that the 56 items listed are part of a larger group of exemptions already in the act and were singled out to provide a list of “slam dunk” farming practices that don’t need oversight.

Farmers and producers could implement these specific conservation practices without notification or permission by ensuring that practices benefit water quality and are in accordance with Natural Resources Conservation Service standards, according to the EPA.

Comments for the interpretive rule closed in July.

Impact to Kan.

Despite the EPA efforts to “Ditch the Myths,” as the agency puts it, state officials and farm industry leaders are skeptical. Flickner said the proposal makes conflicting statements regarding what is covered and what is not.

The proposed rule defines what isn’t a ditch – excluding ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow.”

However, the document also states that ditches neighboring a tributary do fall under regulations – and that may be regardless of whether the tributary only flows intermittently.

Meanwhile, the EPA says exemptions are for established (ongoing) farming, ranching and forestry activities,” which worries farmers who want to pass the farm on to the next generation about what new practices might be included under the rule.


Back on the farm, Westmoreland farmer Glenn Brunkow said he has several intermittent streams that run through his farm, along with ditches and depressions that hold water during heavy rains.

If something was polluting the waters, he added, “the state would know about it. Farmers are the original environmentalists; we take care of the natural resources. We have practices like no-till farming in hopes of holding all the water we can hold in the soil. We carefully monitor the inputs and herbicides and fertilizers we put on.”

They also established terraces and waterways to prevent erosion, he said.

Brunkow attended McCarthy’s presentation in Kansas City and wasn’t impressed.

She said she wanted to dialogue with farmers, said Brunkow, but she only took three questions.

“I don’t understand why they are looking at this rule,” he said. “More administration overreach, would be my personal opinion.”

Sawyer also admits the rule is confusing. On his own farm he has several best management practices implemented to help keep the waters clean downstream. He is one of many farmers participating in a program with the city of Wichita to minimize spikes in atrazine levels.

He also has gone to minimum-till farming to help reduce sedimentation.

“We’re as much environmentalists as anyone,” Sawyer said.

But his field farm swale is troublesome. It flows into a man-made ditch called the Blaze Fork, which is part of the Little Arkansas Watershed. After June’s heavy rain showers during wheat harvest, it’s easy to see the swale’s high water mark.

Will that mean he would someday need a permit to farm here? Sawyer said he can only hope that never happens.