A.G.: Most ponds exempt

Topeka Capital-Journal, The, Oct 25, 2000 by Jim McLean Capital-Journal

Stovall says EPA rules shouldn't impact most farmers and ranchers.

See PONDS, page 10-A

Ponds

By JIM McLEAN

The Capital-Journal

Farmers and ranchers across Kansas likely will be pleased with Attorney General Carla Stovall's opinion on the regulation of farm ponds.

In an opinion released Tuesday, Stovall said most Kansas farm ponds don't qualify for regulation under the federal Clean Water Act.

The much-anticipated opinion could go a long way toward resolving one of the most contentious issues surrounding controversial new water quality standards proposed by the federal Environmental Protection Agency.

The EPA proposed the tougher standards in July after settling a lawsuit filed by two Kansas environmental groups --- the state chapter of the Sierra Club and the Kansas Natural Resource Council.

The Kansas Farm Bureau, the Kansas Livestock Association and other powerful agriculture groups immediately objected, charging the new rules would force farmers and ranchers to keep their stock ponds clean enough for swimming and fishing.

Last month, angry farmers and ranchers packed public hearings in Topeka and Dodge City to protest the regulations.

Throughout the controversy, EPA officials have insisted they have no intention of inspecting farm ponds.

But at an Aug. 30 meeting with rural lawmakers at the Statehouse, Geoffrey Grubbs, director of the EPA's Office of Science and Technology, said the ponds were included in the proposed rules because of a 1997 opinion written by former Attorney General Bob Stephan, which said a state law that exempted them from the Clean Water Act was inconsistent with the federal law.

At the same meeting, Dennis Grams, administrator of the EPA's regional office in Kansas City, Kan., practically invited Stovall to resolve the controversy by writing a new opinion.

"Your attorney general or someone has to say that (the state exemption) meets the standard," Grams said at the meeting. "Our hope is that there is a way to work this out."

The official request for a revised opinion came from Clyde Graeber, secretary of the Kansas Department of Health and Environment.

In a synopsis on the first page of the eight-page opinion, Stovall states, "The federal Clean Water Act's water quality standards apply only to 'natural ponds' and not to artificially created ponds."

That distinction is important, because later in the opinion, Stovall states, "Based on information from the Kansas Department of Health and Environment, the Kansas Water Office and the United States Geological Survey, we understand that nearly all pools of water located on Kansas farms are not natural but rather are the result of man-made construction."

Stovall advises Graeber that he could resolve the farm pond controversy by issuing a regulation clarifying that the state exemption applies only to "non-natural" ponds and reservoirs.

Because the opinion was released to The Topeka Capital-Journal just before the close of business hours on Tuesday, Graeber wasn't immediately available to comment on whether he planned to follow Stovall's suggestion.

Reached late in the day, an EPA spokesman said it was too soon to say whether the attorney general's opinion resolved the farm pond controversy from the agency's perspective.

"All I can tell you is that the attorneys will review it, and it will take some time," said Dale Armstrong, a spokesman in the agency's regional office in Kansas City, Kan. "Hopefully, it will clarify some of the issues we've had."

Reached shortly before 5 p.m., Mike Matson, a spokesman for Kansas Agriculture Secretary Jamie Clover Adams, said a copy of Stovall's opinion hadn't been delivered to the secretary.

The controversy involving the proposed regulations extends beyond the farm pond issue.

Opponents say the regulations would require unnecessary studies of dry streambeds and force the state to spend time and money justifying its classification of 164 lakes and 1,292 streams as "secondary" bodies of water, meaning they aren't designated safe for "primary contact" recreation, such as swimming.

All told, opponents say the regulations would cost more than $100 million to implement.

A spokesman for the environmental groups that forced the EPA to propose the tougher rules counters that Kansas officials shouldn't be allowed to continue delaying full implementation of the Clean Water Act, which was passed by Congress in 1974.

"The law is the law," Charles Benjamin, attorney for the Kansas Chapter of the Sierra Club, said in a previous interview. "It's not like we're jumping the gun here or haven't been patient."

Jim McLean can be reached at

(785) 233-7470 or jmclean@cjonline.com.