Farmers welcome new federal rule on water quality, WOTUS

California Farm Bureau Federation AgAlert by Christine Souza January 29, 2020

Farmers and ranchers expressed support for a new federal rule to protect navigable waters under the Clean Water Act, saying the rule should offer certainty, transparency and a common-sense approach about how the rule would apply on the farm.

California Farm Bureau Federation President Jamie Johansson said last week's release of the Navigable Waters Protection Rule by the U.S. Environmental Protection Agency and Army Corps of Engineers "promises clear guidelines to help farmers maintain and improve water quality while retaining the flexibility they need to manage their land."

The Navigable Waters Protection Rule, which will take effect once published in the Federal Register, will replace the 2015 Waters of the United States rule that would have given federal agencies extensive authority to regulate routine farming activities. Farm Bureau advocated for a repeal and rewrite of the 2015 WOTUS rule because of its expansion of federal jurisdiction over water and land.

"The old WOTUS rule generated only confusion and litigation," Johansson said. "We hope the new rule will lead to a more cooperative approach that sees farmers and ranchers as partners in protection of natural resources. You won't find a stronger ally than farmers and ranchers when it comes to protecting land and natural resources, because they depend on those resources to produce food and farm products."

Following a 2017 presidential executive order, the EPA and Corps reviewed and then rescinded the previous WOTUS rule. In December 2018, the agencies released a draft of the newly proposed rule that revised the definition of waters of the U.S., to clarify federal authority under the Clean Water Act.

The revised Navigable Waters Protection Rule defines four categories of waters that are federally regulated: territorial seas and traditional navigable waters; perennial and intermittent tributaries to those waters; certain lakes, ponds and impoundments; and wetlands adjacent to jurisdictional waters. The new rule also describes what is not subject to federal control, such as features that only contain water due to rainfall; groundwater; many ditches; prior converted cropland; farm and stock watering ponds; and waste treatment systems.

CFBF Senior Counsel Kari Fisher said once the Navigable Waters Protection Rule appears in the Federal Register, she expects that will trigger an onslaught of legal challenges by environmental groups and the state of California, which have said the new rule would reduce Clean Water Act protection for water quality.

The new federal rule does not affect how state or regional water quality control boards regulate water quality in California, Fisher said, noting water quality is already heavily regulated under the Porter-Cologne Water Quality Control Act. She added the new federal rule clarifies that it is up to the states to regulate nonpoint source pollution, and attempts to clarify the federal government's role under the Clean Water Act. When it was adopted in 1972, she said, the federal Clean Water Act regulated surface water pollution from point sources and gave the states the authority to regulate nonpoint source pollution.

"The federal definition comes into play with a dredge-and-fill project or a wetland on irrigated agriculture, where one would need an additional federal permit," Fisher said. "This version (of the federal rule) attempts to make it very clear and provide certainty and predictability about when you would need a federal Clean Water Act permit and when you wouldn't. You are always going to need a state permit, but this helps farmers and ranchers understand when they will also need a federal permit."

Until the Navigable Waters Protection Rule is published, activities continue to be regulated under a 1986 WOTUS rule, she said. Landowners faced challenges under that rule, Fisher said, because it was not always evenly applied by agency staff.

"Interpretations of the law and guidance documents differed across the country due to decisions in various U.S. Supreme Court cases, resulting in confusion," she said.

That 1986 rule could remain in effect, she added, if those filing lawsuits opposing the rule ask for and receive an injunction that prevents its implementation.

Announcing the new federal rule before the National Association of Home Builders last week, EPA Administrator Andrew Wheeler said, "After five decades of constant litigation and uncertainty, our new rule significantly curtails the all too familiar practice of having to hire teams of attorneys to tell people how to use their own land."

Expressing support for the new rule, American Farm Bureau Federation President Zippy Duvall made a similar point, noting it "provides clarity and certainty, allowing farmers to understand water regulations without having to hire teams of consultants and lawyers. We appreciate the commitment of the agencies involved and this administration to crafting a new regulation that achieves important regulatory oversight while allowing farmers to farm."

AFBF is a member of the Waters Advocacy Coalition, which includes a broad cross-section of small businesses, farmers, ranchers and builders.

For more information about the new rule, see www.epa.gov/nwpr.

(Christine Souza is an assistant editor of Ag Alert. She may be contacted at csouza@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.

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