Farmers welcome new federal rule on water
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executive order, the EPA and Corps reviewed and then rescinded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
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,"
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
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 firstname.lastname@example.org.)
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