Congress tackles waters of the U.S. proposed rule

Issue Date: March 25, 2015
By Christine Souza

With a proposed "waters of the U.S." rule set to be finalized sometime this spring, the issue remains an important topic for farmers and ranchers in states including California and for representatives in Washington, D.C. The proposal comes up for discussion this week by the Senate Agriculture Committee and was the subject of a hearing by a House Agriculture subcommittee last week on its potential impact on rural America.

The proposed WOTUS rule would redefine and expand the scope of waters protected under the federal Clean Water Act. Ultimately, critics say, it would expand the jurisdiction of the U.S. Environmental Protection Agency and the Army Corps of Engineers over farmland.

California Farm Bureau Federation federal policy consultant Erin Huston said Farm Bureau is concerned about the impact the rule would have on family farmers and ranchers.

"If finalized, this rule would significantly expand the jurisdiction of the Clean Water Act and place landowners under an uncertain amount of liability," Huston said.

At the House Agriculture subcommittee hearing last week, the American Farm Bureau Federation said that unless dramatically altered, the WOTUS rule would result in potential Clean Water Act liability and federal permit requirements for a large number of commonplace and essential farming, ranching and forestry practices.

AFBF General Counsel Ellen Steen told subcommittee members the WOTUS rule would create enormous uncertainty and vulnerability for farmers and ranchers nationwide.

"It is impossible to know how many farmers, ranchers and forest landowners will be visited by (EPA) enforcement staff or will be sued by citizen plaintiffs' lawyers—and it is impossible to know when those inspections and lawsuits will happen," Steen said. "But what is certain is that a vast number of common, responsible farming, ranching and forestry practices that occur today without the need for a federal permit would be highly vulnerable to Clean Water Act enforcement under this rule."

According to Steen, several statutory exemptions in the Clean Water Act demonstrate a clear determination by Congress not to impose regulation on ordinary farming and ranching activities. However, she said, agency and judicial interpretations during the past several decades have significantly limited the agricultural exemptions that have traditionally insulated farming and ranching from Clean Water Act permit requirements.

"Much of the remaining benefit of those exemptions would be eliminated by an expansive interpretation of 'waters of the United States' to cover ditches and drainage paths that run across and nearby farm and pasture lands," Steen testified. "The result would be wide-scale litigation risk and potential Clean Water Act liability for innumerable, routine farming and ranching activities that occur today without the need for cumbersome and costly Clean Water Act permits."

Steen explained that because ditches and ephemeral drainages are ubiquitous on farm and ranch lands—running alongside and even within farm fields and pastures—"the proposed rule will make it impossible for many farmers to apply fertilizer or crop-protection products to those fields without triggering Clean Water Act 'pollutant' discharge liability and permit requirements."

Members of the House Committee on Agriculture asserted that the administration has acted on its own, without input from the states and stakeholders, to broaden the scope of the act.

"The EPA's proposed rule could have serious consequences for our nation and prove to be a severe detriment to our economy, with a particularly strong impact in rural counties," said Rep. Glenn Thompson, R-Pa., chairman of the House Agriculture Subcommittee on Conservation and Forestry. "Hasty movement from the EPA will only invite costly litigation, burden states and counties with compliance costs, and create obstacles to building and replacing our national infrastructure."

At a separate event last week, EPA Administrator Gina McCarthy apologized to farmers in Kansas for the agency's bumpy rollout of the WOTUS proposal.

"I really wish we had done a better job of rolling out the clean water rule," McCarthy said. "I'm really concerned that we weren't crystal clear not only about what we intended to do, but also what we weren't intending to do."

Earlier this year, the EPA and the Army Corps withdrew an "interpretive rule" that had narrowed a Section 404 exemption of the Clean Water Act by tying it to mandatory compliance with previously voluntary Natural Resources Conservation Service standards.

(Christine Souza is an assistant editor of Ag Alert. She may be contacted at

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