Commentary: It’s time to tell EPA and the Corps: Ditch the rule


Issue Date: November 5, 2014
By Kari Fisher and Rayne Thompson
Kari Fisher
Rayne Thompson
On Halloween, the American Farm Bureau distributed this message via social media, as part of its 'Ditch the Rule' campaign to encourage federal agencies to withdraw a proposed rule regarding waters of the United States.

For the past six months, Farm Bureau has been urging the U.S. Environmental Protection Agency and the Army Corps of Engineers to drop a proposed rule that would allow them to expand their jurisdiction and enforcement authority under the federal Clean Water Act. Now, there are only days left to submit comments to EPA and the Corps—and it's important for the agencies to hear directly from farmers and ranchers who would be harmed by the proposal.

In discussions with EPA and the Corps, and with members of the California congressional delegation, the California Farm Bureau has made it clear that the rule should be withdrawn because of its significant, direct effects on family farms and ranches. We have invited Washington, D.C.-based regulators to California to see firsthand how the proposed rule would affect routine farming practices. It's crucial for those regulators to understand the impact this proposal would have on farms and ranches.

Here's why: The proposed rule would significantly expand the federal government's authority over small streams, ditches, floodplains and other areas where water may flow—no matter how infrequently. The proposal would give regulators room for inconsistent interpretation and application, and could invite more enforcement actions and lawsuits by activist groups.

The proposed rule would extend Clean Water Act requirements to areas that have not been previously regulated as "waters of the United States," such as seasonal drainages; ditches, including roadside, flood control, irrigation, stormwater and agricultural ditches; water bodies in riparian or floodplain areas; and isolated waters.

Under the proposal, virtually every area that gets wet or has flow during rainfall could be regulated. For example, the rule asserts jurisdiction over waters or wetlands located within a "floodplain" or "riparian area" of a water of the U.S. Interpretation of these ambiguous terms could result in large areas of farmland falling under newly created federal jurisdiction. Additionally, the proposed rule would include many, if not most, smaller waters and even dry land in the definition of "waters of the U.S."

As a result, Clean Water Act permit requirements that apply to navigable waters would also apply to most ditches, drains, small ponds—and even depressions in fields and pastures that are only wet when there is rain. This means a farmer or rancher would likely have to obtain a permit prior to conducting activities such as spraying for weeds or insects, disking, or pulling weeds. Permits are far from guaranteed, may take months to obtain and often include paperwork, consultation with other agencies and reporting requirements in addition to any requirements aimed at protecting water quality. Not only that, but permits are costly: An individual Section 404 permit application for dredge-and-fill activities costs $62,166, plus $16,787 per acre of impacts to "waters of the U.S."

Violations of paperwork or reporting obligations carry the same potential penalties as unlawful discharges to waters of the U.S.—up to $37,500 per violation per day. The proposed rule's expansion of jurisdiction would also make many routine farming and ranching activities vulnerable to lawsuits brought by environmental activist groups.

Of further concern is the inconsistency that would be created by regional offices having discretion to interpret and apply the vague definitions in the proposed rule—"uplands," "floodplain," "subsurface connection," "waters" and "waste treatment." This would create confusion and additional burdens, require more federal permits, and increase possible litigation for both state permit programs and individual landowners.

When commenting on the proposed rule, farmers and ranchers should make the following key points:

  • Farmers and ranchers are stewards of the land and care about the environment and water quality. But this rule is confusing. Regional offices would be left to interpret and apply the regulations to farms on an inconsistent basis. Farmers know the ground they farm and should have clear guidance about how to comply with the law.
  • Third-party lawsuits have become the new norm for regulating farmers. Even if farmers protect water quality and comply with the law, they could be forced to defend themselves in court.
  • Under the proposed rule, farmers, ranchers and other landowners would face a tremendous roadblock to ordinary land-use activities, from building a fence to treating for or pulling weeds to controlling insects.
  • Getting a permit to plant grapes, build a fence or clear out brush is not a simple task. It could require consultation with state and federal agencies, hiring consultants and waiting for approvals. If the permit is obtained, it often includes paperwork and reporting requirements in addition to any requirements aimed at protecting water quality. Farmers just want to continue to farm and be stewards of the land, leaving it in better shape for future generations.
  • EPA and the Corps should withdraw the proposed rule.

The public comment period on the proposed rule remains open until Nov. 14. Watch for a Farm Team alert and be sure to submit your comments to EPA and the Corps, urging them to withdraw the proposed rule. You can email your comments to ow-docket@epa.gov with the subject title: Attention: Docket ID No. EPA-HQ-OW-2011-0880.

As the American Farm Bureau Federation says, it's time to "ditch the rule!"

(Kari Fisher is associate counsel and Rayne Thompson is manger of the Federal Policy Division for the California Farm Bureau Federation.)

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