As the battle over the Obama administration’s controversial water rule takes center stage in their chamber, North Dakota’s two senators have emerged as pivotal players for the opposition.
The bipartisan pair of Republican John Hoeven and Democrat Heidi Heitkamp is driving a two-pronged attack on the "Waters of the United States" rule, which would increase the number of streams and wetlands that receive automatic protection under the Clean Water Act.
Hoeven, a member of the Senate Appropriations Committee, is spearheading efforts to kill it through the appropriations process, preparing to attach policy riders to key spending measures.
Heitkamp, who squeaked through a narrow election in 2012, has become a prominent Democratic voice of opposition attempting to woo fellow moderates to support stand-alone legislation that would send the administration back to the drawing board on the rule.
"There is not one single federal regulation in the entire country that has caused more concern in the state of North Dakota than this Waters of the United States proposed regulation from the Corps of Engineers and EPA," Heitkamp said at a news conference late last month unveiling Senate critics’ lead measure to kill the rule (Greenwire, April 30).
But the forces fomenting concern on the ground in their state may have less to do with the specifics of Obama water rule itself than with a deep-running feeling among the region’s farmers that they are being boxed in by nature and shifting federal programs.
The root of the issue: It’s extra wet in North Dakota these days.
To be sure, it has always been a soggy state. When glaciers retreated at the end of the last ice age 10,000 years ago, they scoured the landscape with shallow depressions called "potholes" that collect and store water.
But recent years have been especially dripping in the Prairie Potholes region. The past 23 years have constituted the longest wet period on record for North Dakota, according to the state’s climatologist, Adnan Akyuz. He said 2010 was the wettest year on record and 2013 was the second wettest.
All the extra precipitation has left the potholes fat and overflowing, and has developed new spots in farmers’ fields where water collects.
"It’s created a lot of heartache for farmers here," said Chad Weckerly, who farms 16,000 acres with his father and grandfather in the central North Dakota community of Hurdsfield.
"Now we’ve got a situation where water that didn’t use to drain anywhere is now overland flooding to the point that water is traveling through eight or nine wetlands — from wetland to wetland," he said. "We’re flooding out township roads."
All that extra water couldn’t have come at a worse time for North Dakota farmers.
Rising temperatures combined with technological advances have opened the possibility of planting more lucrative crops, including corn, soybeans and edible beans like kidneys. Sustained high commodities prices made this even more enticing in recent years.
But few crops can survive in ponded water for very long. And unlike the Corn Belt states of Iowa and Indiana, North Dakota’s farm fields don’t typically have tile drainage systems to shuttle water away from vulnerable roots.
Installing tile drains is expensive, said Mark Watne, president of the North Dakota Farmers Union. The benefits outweighed costs decades ago in states like Iowa because they had much higher production. But with North Dakota farmers growing primarily wheat until recently, it was harder to justify.
There, the numbers were just beginning to pencil out when Congress passed the 1985 farm bill with two new provisions — dubbed Swampbuster and Sodbuster — tying federal farm benefits to conservation standards that prevent the draining of wetlands and farming of highly erodible land.
To environmental groups, it was common sense. Work was underway elsewhere in the federal government to stem the rapid loss of wetlands across the nation. Allowing farmers to use farm bill funds to drain wetlands with federal dollars would have been subsidizing that very loss, they argue.
But even today, North Dakota farmers feel as if they were left with the short straw.
"Why is it that the North Dakota farmers are being seemingly more penalized because we don’t have those drains available to us?" Watne asked. "It’s like, well, Iowa got away with it, so let’s not make North Dakota get away with it — that’s a farmer’s look at it."
But the line between wetland and non-wetland is not a clear one, and thanks to Swampbuster, it matters a lot.
The Department of Agriculture’s Natural Resources Conservation Service (NRCS) defines a wetland as having hydric soils, enough water to support wetlands vegetation and a preponderance of those types of plants.
If a farmer is interested in draining a wet area on his property, he can put in a request to NRCS for a determination that will say whether that wet area is a wetland in the eyes of the agency, and thus whether draining it would jeopardize his Farm Bill benefits.
By 2012, North Dakota’s extra-wet weather had driven up interest in new drainage systems at the same time that high commodities prices put enough money in farmers’ pockets that they could actually afford them.
"We’re looking at equity, cash here we want to do something with; well, do I want to buy land at these record high prices which seem ridiculous?" asked Weckerly, who also serves on the board of the North Dakota Farm Bureau. "Or would I rather invest into a property I already own and make that more productive? Because [with drainage] I think I can easily — easily — increase production by 150 percent from what it is today."
The result of all that new interest in drainage: NRCS couldn’t keep up with demand for determinations. The agency piled up a backlog of 12,000 requests in the Prairie Potholes region by 2012.
Kevin Wickey, NRCS’s regional conservationist for the central region, said that backlog has been substantially decreased in recent years, down to fewer than 5,000 requests by 2014.
But at its height, times were so good and the process was taking so long that farmers began thinking they might opt out of federal farm benefits that were tied to conservation compliance, and only use subsidized crop insurance, agricultural leaders say.
Then came the 2014 Farm Bill.
Anticipating that farmers might skip the Farm Bill programs with environmental requirements, lawmakers relinked the conservation requirements to crop insurance, as well.
"Farmers are very innovative," said Watne, with the North Dakota Farmers Union. "If you can’t farm the land but you still have to pay for the land and you still have to pay the taxes, you have to come up with a tool. So that tool of being able to stay out of the Farm Bill program but still have the crop insurance on the remainder of your land was big, and it was another big thing that was taken away from them."
‘Once you tie up this land, you lose control’
Other factors have also been feeding the controversy over water policy in North Dakota.
Some of the wetlands that have been expanding thanks to the wetter-than-usual weather are ones that the U.S. Fish and Wildlife Service holds easements on.
Many of those easements were purchased decades ago, but they exist in perpetuity. The easement grows and shrinks with the size of individual wetlands, which means that during wet periods, farmers are further restricted in what they can do on their land.
"My grandfather a long time ago signed an easement — he got paid $4 an acre, and that’s perpetual, it never comes out, and we never get paid anymore," Watne said.
He said he wanted to build a farmstead in an area near one of these easements and asked permission from the agency, offering to put in extra conservation measures.
"I got, ‘No, you can never do that,’" he said. "So there’s some fear from farmers that once you tie up this land, you lose control."
The state also just went through a politically divisive debate over a ballot measure that would have set aside a slice of the state’s oil extraction tax — now a much larger pot thanks to the Bakken drilling boom — to spend on land conservation, flood control and recreation.
Conservation groups argued that it would help stave off the environmental degradation that other regions have seen, but the oil and gas industry lobbied hard against it, preferring to keep the money on the table for infrastructure improvements. And agricultural groups across the spectrum came out staunchly against it, fearing that a hefty new fund for conservation could mean that farmers would be outbid when land came up for sale (Greenwire, Oct. 8, 2014).
The measure suffered a resounding defeat last November, voted down by a margin of 4 to 1.
Steve Adair, who heads the Great Plains regional office of Ducks Unlimited and led the committee pushing the ballot measure, said it inadvertently tapped a nerve.
"That kind of surprised us because the concept was very similar to funding for other incentive-based conservation programs," he said. "But somehow it got stretched into a story that conservation groups want to buy a bunch of land — much of the narrative was about things that weren’t even part of the proposal."
‘We are not adequately protecting these waters’
This is the political tinderbox to which the Obama administration’s water rule offered a spark.
The irony: The water rule, at least in its proposed form, didn’t go nearly so far as environmental groups wanted it to for regions like the Prairie Potholes.
While the farm bill’s Swampbuster program is a voluntary one that farmers who elect to receive federal benefits must comply with, the Clean Water Act broadly regulates pollution affecting rivers, streams and wetlands, although it contains key exemptions for agricultural activities. Jurisdiction of the two programs — which wetlands they cover — is entirely separate.
A 2001 Supreme Court decision struck down the method that the Army Corps of Engineers and EPA had been using to claim jurisdiction over wetlands and lakes that are far away from the big rivers that the Clean Water Act clearly covers.
Instead, the agencies are left to make case-by-case determinations, looking at whether individual wetlands have a significant connection to those downstream waters. Those determinations are complicated, time-consuming and sometimes just don’t get done.
In practice, greens say this leaves important regions like the Prairie Potholes — where wetlands provide habitat for three-quarters of all North American waterfowl and hold back water that could otherwise cause downstream flooding — unprotected from pollution and development.
According to a Fish and Wildlife Service report released last year, wetlands in the Prairie Pothole region declined by an estimated 74,340 acres between 1997 and 2009 — an average annual net loss of 6,200 acres (E&ENews PM, July 1, 2014).
Re-extending Clean Water Act protections to regions like this has been a top priority of many conservation groups.
"We are not adequately protecting these waters," said Jan Goldman-Carter, senior manager for wetlands and water resources at the National Wildlife Federation. "The sum and the substance of it is that we are losing a lot of these seasonal wetlands."
The lion’s share of wetlands loss in the Prairie Potholes region has come from agricultural drainage, but Clean Water Act protections wouldn’t necessarily stop this, Goldman-Carter acknowledged. Still, she argued, including those wetlands under the scope of the 1972 law would send an important signal about their significance.
The rule proposed by the Obama administration last spring would leave this same case-by-case analysis in place, though. The administration did solicit ideas on ways of counting some categories of so-called isolated wetlands in or out automatically, and environmental groups are hopeful that the final rule could include more definitive statements on some regions.
But to farmers and ranchers in North Dakota, the Waters of the United States rule represents the possibility of yet another federal agency restricting what they can do on their land.
"We’re going to have another regulatory arm, another agency with their fingers in our business in addition to the ones that have," Weckerly with the Farm Bureau said.
That EPA Administrator Gina McCarthy has said that all the current exemptions for agriculture will continue offers little relief to many North Dakota farmers.
"What I’m talking about is the next thing they’re going to look to take a bite into," Weckerly said. "The real threat I see here is the EPA trying to lay claim to the decisions I make on a daily basis on my opportunities for fertility and herbicides."
Watne, whose group at the national level has been one of the most receptive to the new rule from the agricultural sector, said he is still hopeful that the Obama regulation, which is currently undergoing interagency review, can be salvaged.
But, he said, his group will only support the final rule if it doesn’t expand federal jurisdiction — a target that is widely agreed to but has different meanings to just about everyone.
"I really do not want to pollute the water — it’s not like we want to do that — but we also want to have some reasonableness in this," Watne said. "We would never see the Prairie Potholes region being part of it."