Farmers ask that ‘waters’ rule be clear, consistent


Issue Date: October 25, 2017
By Christine Souza

A "waters of the United States" rule that is clear, feasible and maintains existing exemptions for everyday farming activities: That's what agricultural stakeholders sought during a teleconference with federal officials, as agencies seek to develop a new WOTUS rule.

"Many agricultural interests that took part in the call expressed concern about the lack of consistency among agencies regarding how they interpret waters of the U.S. regulations under the Clean Water Act," California Farm Bureau Federation Associate Counsel Kari Fisher said after monitoring last week's teleconference. "Commenters also urged regulatory clarity and meaningful application of existing agricultural exclusions and exemptions."

The 2015 WOTUS rule, proposed by the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers under the Obama administration, would have expanded the agencies' authority to regulate water and land. It came under strong criticism from farmers, ranchers and agricultural organizations.

In an executive order signed in February, President Trump asked agencies to rescind the 2015 WOTUS rule and develop a revised rule based on an opinion written by the late Supreme Court Justice Antonin Scalia. The opinion takes a more narrow view of federal jurisdiction, restricting Clean Water Act jurisdiction to "relatively permanent" waters and wetlands with a continuous surface connection to relatively permanent waters.

The teleconference for agriculture held by the EPA and Corps represented one of several on development of a new WOTUS rule.

During the conference, Sacramento attorney Demar Hooper, who specializes in Clean Water Act litigation and represents farmers throughout California, shared an example of a client who farmed wheat on his land and was challenged with a lawsuit by the Corps, which argued that the farmer's tilling of the soil resulted in a regulated discharge requiring authorization under Section 404 of the Clean Water Act.

"The Corps disputes whether wheat farming was properly established for purposes of the plowing exemption. There is no question that the wheat farming occurred on the property in the past, but if wheat farming was somehow not established, the property would have surely been established as ranching land, which is also entitled to the plowing exemption," Hooper explained.

"On behalf of farmers throughout California and the nation," Hooper added, "I urge you to resolve these ambiguities that generate confusion, delay and wasteful expense for farmers' operations."

Ron Kern, manager of the Ogle County Farm Bureau in Illinois, called it "very disturbing" that each agency with WOTUS jurisdiction uses different indicators to define wetlands.

"It is apparent that any new WOTUS rule be clear, consistent and require communication between agencies and landowners," Kern said.

Laura Campbell of the Michigan Farm Bureau also recommended that various farming activities remain exempt.

"Any new rule defining waters of the U.S. must make every effort to limit impact to farming operations because of the economic impacts of the damage to farming, but also the importance of our nation's food supply," Campbell said, adding that regulated waters of the United States "must be recognizable by relatively permanent flow and clear distinction from gulleys, washouts, field or forest road floods or any other waters not intended to be regulated."

Iowa Farm Bureau President Craig Hill said farmers and ranchers need "a clear rule that agencies can more easily administer. We can't grant expansive control over every acre where a raindrop falls."

Scott Yager, environmental counsel for the National Cattleman's Beef Association, said cow-calf producers "need a definition that is implementable without having to hire consultants and attorneys to decipher that, because a lot of our producers are mom-and-pop operations."

Several participants pointed out that the 2015 WOTUS rule contained an exclusion for ditches, but it was so limited that most farm ditches would be considered a water of the U.S.

Ian Lyle of the National Water Resources Association described ditches, drains and canals as critical elements in delivering water for Western agriculture and other needs.

"These features were never intended to fall under the jurisdiction of the CWA and, as such, should be clearly exempt in any subsequent rule," Lyle said.

Scott White, executive director of the Klamath Water Users Association, which represents family farmers in California and Oregon, said the more than 12,000 managed canals and ditches within the Klamath Project should be exempt from the new WOTUS definition. White added that grading and leveling should be exempt from removal/fill permits, and temporary flooding of fields should be excluded because the crops provide habitat for waterfowl.

To comment on the revised WOTUS rule by the Nov. 28 deadline, submit comments via www.regulations.gov; search for Docket ID No. EPA-HQ-OW-2017-0480.

(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.