Kansas farmers finally drew a deep gash in the dry sand and dared EPA to cross.
First, though, meet an EPA guy who finally was able to break away from the huge crowd to sneak a smoke. It had been a long afternoon and night for him.
He said he was "flabbergasted" at the size of the crowd. What he referred to was a history-making show of unity by 11 farm organizations and the League of Kansas Municipalities at the Kansas--get this irony--Museum of History in Topeka. Some of us estimated the attendance at the informal and formal hearings at almost 1,000. It was an unprecedented gathering in the modern era of farming.
The EPA fellow, though, would not admit to me and another farm writer that the crowd size would influence the EPA's thinking in possibly amending its proposals.
Still, it is difficult to believe the assembly would go for naught. In fact, the crowd size and its firm but civil conduct will, in time, prove to be important in subsequent hearings, meetings and yes, perhaps legal trials.
Its presence went a long way to establish legal standing for the coalition, which earlier hired big-city lawyers perhaps to sue the EPA back into a more realistic and, uh, common sense approach to protecting water quality.
As a matter of fact, leaders whispered off the record to me, knowing I wouldn't name names, that the likelihood of suing is great, and that the main purpose of the crowd was to establish legal standing.
This was a far more sophisticated bunch than typical farm stereotyping by city folks--there was no one there to hee-haw about--would lead some to believe. It was probably an eye-opener to the EPA that 1,000 smart and articulate and sometimes cynical-sounding businessmen and women from farms and ranches would show up to express their deep distrust of the agency and its fellow-travelers who engage in friendly lawsuits to force action the EPA doesn't mind taking.
We get sued everyday, the EPA smoker said, as he took another drag. No big deal that the Sierra Club or any other entity sues. By the way, his name was Dale Armstrong. He is the agency's Region VII publicist. He formerly was a newspaper editor in St. Louis, and is very good at what he does. He had to scramble to keep up with the crowd, which grew and grew and grew between 3 p.m. and 7 p.m.
About 400 people were inside the museum's classrooms, while that many or more were outside the building on folding chairs listening to loudspeakers on the lawn.
Armstrong said most hearings about rules don't attract 50 people, and he has conducted some where the officials outnumber those testifying. He mentioned the crowd size several times, yet refused to admit it would matter. His dualistic and nearly conflicting attitude about the crowd's meaning seemed to mirror the agency's overall method and attitude in its approach to the people, the water, the state of Kansas and its own mission.
On one hand, it says it doesn't want to regulate farm ponds; on the other, they decline the chance not to have anything to do with farm ponds. Their goal is to make waters in the United States fishable and swimmable, unless it can be demonstrated to agency satisfaction that a given water cannot be made suitable for those primary purposes. They lay claim to U.S. waters, the definitions of which have taken giant legal stretches over the past 28 years.
The regional underlings express sympathy and understanding and even some common sense, almost admitting that a bone-dry ditch that runs water five days a year isn't exactly fishable and swimmable, which are agency presumptions for 1,400 stream segments in Kansas.
We, as citizens, need to prove through use attainability analysis (UAA, an EPA term) that the stream segments should not be pegged as suitable for swimming and fishing. What will the cost of that be? Who will pay? The regional people tried to minimize what the requirements might be, but the crowd knows about satisfying bureaucratic demands for verification. Handing in a few snapshots of a rocky dry streambed might be helpful, but will they prove anything? Probably not.
Most of the common-man, heartfelt stuff at the Topeka hearing was done off the record in an informal question and answer session. Not a word, not an inflection, not an iota of body language and not a now-famous handshake agreement between Farm Bureau President Stan Ahlerich and the EPA's Gale Hutton really ever happened in a legal sense. That's a shame in a way, but in another way there were about 400 pairs of eyes and hears bearing down on the agency's panel, which tried to sound reasonable about an unreasonable affair.
Not since the days of the tractorcades and protest rallies have so many come from so far to support a cause. The American Agriculture Movement in 1977-78-79 was over economics and appealed to a particularly hard-pressed category of farmers. This was altogether different, and has to do with fighting off a political and regulatory takeover of water affairs from the state and holders of private property that could ruin many farmers, ranchers and small towns.
The EPA wants studies to prove that there is no flow in some of the streams, and that swimming and/or fishing aren't possible. The Kansas Department of Health and Environment has estimated it would cost at least $200 million just to study these small town discharges into what are often dry creek beds. The City of Bushton, it was pointed out as an example by the League of Kansas Municipalities, would have to pay $2,000 per family just to prove no one is fishing or swimming at its discharge point, which looked mighty dry and rocky to me in a photograph. But was it really a Bushton photo, or just an image from Mars? I thought it was Bushton, but you might not.
The EPA smoker said the agency has about 600 employees in the regional headquarters in Kansas City. He said the agency would love to withdraw from the problem in Kansas. That could happen, he said, if the legislature would just change some wording in the state water quality rules to comply with the U.S. Clean Water Act.
As it is, he said, any action is at least a year away, giving everyone time.
The coalition, though, has heard enough and seems determined to play the patsy role no longer. It is positioning itself for legal action, confirmed one of the lawyers, Parthy Evans of the firm, Stinson, Mag and Fizzell in Kansas City, KS.
The comment period ends Oct. 16, after which the EPA is required to look at what the people have told them. The agency then is to write a "responsiveness summary" and then issue a final rule with that summary. At that point, which the smoker indicated could be a year from now, the coalition would file suit in the federal district of Kansas, Ms. Evans told me.
Whatever happens from here is going to be at least a partial result of the force displayed by the unified appearance and efforts of the coalition.
It is time, one ag leader told me, to quit cannibalizing in agriculture and work together instead. This showed for now that can be done. Kansas farmers showed moxie by standing tall, saying the EPA must end its "mission creep."
Don't be surprised to see the EPA alter its proposals, either. The smoker Mr. Armstrong said it does modify proposals sometimes.
So, the ball's in several courts other than agriculture's and small towns' for a change. The state, the EPA and the environmental activists now must react to the folks on the ground. And how sweet it feels for now.