Final WOTUS proposal needs complete rewrite

Issue Date: June 17, 2015
By Christine Souza

With the rulemaking complete for the federal waters of the U.S. final proposal that gives federal agencies new powers to regulate normal farming, ranching and business activities under the Clean Water Act, those who have analyzed the document are urging the U.S. Congress to pass legislation that would force agencies to rewrite the rule.

"Word is getting out amongst members of Congress that this is worse than we ever thought it could be," said San Joaquin County winegrape grower Brad Goehring. "There is no question that this rule will cover anything that even potentially has the capacity to carry water even if it is temporary."

Goehring was part of a small delegation of California Farm Bureau Federation members and staff that were in Washington D.C. last week talking to legislators about why this rule would be detrimental to agriculture.

"We were on Capitol Hill to make our case for why this is a bad deal for California agriculture," said Josh Rolph, CFBF federal policy manager. "We had constructive meetings with legislators from both sides of the aisle. There's a chance to kill this rule because that is what needs to happen."

Progress was made by Congress last week after the U.S. Senate Committee on Environment and Public Works approved S. 1140, the Federal Water Quality Protection Act that would require the agencies to withdraw the WOTUS rule and start over. Last month, the House passed a similar bill. Rolph explained that President Obama has stated that he would veto any such bill, so 67 votes are needed to override a veto.

"Time is really of the essence," Goehring said. "We've got a lot of work to do in a very short amount of time to get enough votes to make this veto-proof."

American Farm Bureau Federation President Bob Stallman said, "America's farmers and ranchers and other small businesses are looking to Congress to press the reset button on this rule. We all want clean water, but such a worthy goal is worth doing right."

On May 27, EPA and the U.S. Army Corps of Engineers released a pre-publication version of their final rule that Farm Bureau and other groups say would unreasonably expand jurisdiction over farmland for both the EPA and the corps.

Kari Fisher, CFBF associate counsel, said Farm Bureau has identified serious problems and significant impacts that the rule will have on farmers and ranchers.

"The regulation of ditches has fundamentally changed. Now, under the final rule, there are just three exceptions from being a ditch being classified as a water of the U.S. Unfortunately, they are very narrow exceptions and the burden is on the landowner to prove that they would fall within one of the exceptions," Fisher said. "This makes it very hard for the landowner to prove that they are not harming a water of the U.S."

The only way a ditch will be excluded is if the landowner can show that it isn't a relocated tributary and isn't excavated in a tributary, or draining a wetland. Given the agencies' ability to use historical maps and data, a landowner may have no reasonable way to know whether the agencies will find a historical tributary on his land and a farmer cannot simply look at the ditches that run alongside or within his farm fields to know whether those will be waters of the U.S., Fisher explained. Even if a farmer sees no indicators or flow on his or her parcel, EPA can pull up old maps and photos to determine the existence of a tributary, Fisher said.

Under the final rule, agencies will be able to make determinations using remote sensing or mapping information and other desktop tools to find indicators that the land ought to have the characteristics that the agencies say indicate a tributary which is a bed, a bank or an ordinary high water mark.

The Clean Water Act also includes a citizen suit provision, which means that any citizen can bring a lawsuit to challenge what they consider to be violations of the act.

"The more waters that are covered expands the breadth of what is challengeable under citizen suits," Fisher said. "If a farmer is subject to a citizen lawsuit, the farmer would have to defend himself or herself in court, which is a costly endeavor, even if everything has been done by the book and no waters of the U.S. are present."

AFBF General Counsel Ellen Steen said the rule also applies to those outside of farming such as businesses or municipalities.

"All of a sudden, land features all over the country become waters of the U.S. and that means doing things on that land trigger not just the need to get a federal permit, or two federal permits, but also triggers automatic liability and potential huge penalties for applying pesticides or fertilizer or moving dirt," Steen said "It also applies to anyone else who moves dirt or puts anything on the land, such as building roads and homes, that's why so many other industries oppose it, not just farmers. "

The rule will go into effect 60 days after it is published in the Federal Register.

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(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.