Commentary: Now is the time to act to stop the ‘Clean Water Rule’


Issue Date: August 12, 2015
By Josh Rolph
Josh Rolph
The ‘Clean Water Rule’ finalized by the U.S. Environmental Protection Agency will broaden federal jurisdiction over farmland, and could severely restrict farmers’ activities and ability to expand.
Photo/Tracy Sellers

In June, I wrote on the U.S. Environmental Protection Agency's newly finalized "waters of the United States," or WOTUS, rule. It will greatly enlarge the federal government's jurisdiction by expanding the definition of a "navigable water." Since then, I've been to Washington, D.C., on a couple of trips to advocate against the rule and seek support to rescind it. These trips have been effective, but are only a small part of the larger effort needed to turn the tide against the rule.

During the coming weeks, Farm Bureau will host webinars to educate our members on the harm this rule will have on farmers and ranchers throughout California. There will also be a component on how to advocate to rescind the rule. Your help in this effort is urgently needed. Contact your county Farm Bureau to learn more.

The new rule could severely tie farmers' hands and make it harder for agriculture to expand.

EPA has begun calling this new regulation the "Clean Water Rule." Personally, I prefer that to calling it the WOTUS rule, but a more accurate name would be something like the "Land Grab Rule" or the "Every Drop of Water is Ours and Not Yours Rule."

Of course, the EPA disagrees. It claims exactly the opposite: that the new rule brings clarity and certainty to existing regulation defining waters of the United States. It claims the new rule does not add any new requirements for agriculture or interfere with private property rights and land use. Furthermore, it says the rule doesn't regulate most ditches, or cover erosional features.

So with one side saying one thing and the other side emphatically disagreeing, the question naturally becomes: Who is right? You have to ask, if our side isn't correct in our assessment of the rule, what of the lawsuits filed by 30 states and a consortium of business and agricultural groups, including the American Farm Bureau Federation? Have we collectively overreacted by concluding that the rule is harmful?

To see how far EPA has gone with the rule, it's important to review the original congressional intent. Federal laws regulating water pollution began in 1948 and were amended in what became known as the Clean Water Act in 1972. That year, the EPA was given authority to regulate pollutant discharges into waters of the United States. The updated law made it unlawful to discharge a pollutant from a "point source," or a specific location, into navigable waters, unless a permit was first obtained.

Although the CWA has been changed through the years, one thing remains the same with the new rule: It is still unlawful to illegally discharge a pollutant. Farmers and ranchers are clear on this point and have no intention of violating the act.

But on its own, the EPA has artfully expanded the land and waters covered by the CWA. And on Aug. 28, this new rule becomes the law of the land.

In order to know whether farm property will fall under the rule's jurisdiction, you could try to interpret the 300-page document yourself. But unless you're a multidisciplined environmental attorney, biologist and Geographic Information Systems specialist, understanding the true impact will be difficult.

To prove my point, as the EPA claims to bring clarity and certainty to the CWA, the rule gives bureaucrats the authority to make "case-specific" determinations in many instances when categorical jurisdiction cannot otherwise be found.

One illustration: The agency claims to exempt "puddles" from the requirements of the rule. On the next page of the rule, we learn that a puddle is an "inexact term," though it defines a puddle as water that collects on pavement or in "uplands." That provides some direction, except that two pages prior, the EPA explains that "the agencies have eliminated the term 'uplands'" from the rule. In other words, an inexact term is defined using a word with no definition.

Now, the definition of "puddles" may not affect many farmers and ranchers directly, but it's an example of the Alice in Wonderland reasoning that characterizes the rule as a whole.

Come Aug. 28, when the rule takes effect, farmers on jurisdictional land will likely have three choices:

  • Abandon agricultural practices on their own private property;
  • Attempt to obtain applicable permits, which will be expensive and time consuming;
  • Proceed with operations, which could result in up to a $37,500-a-day fine for each violation.

The lawsuits against the rule offer hope that it may simply go away. A court-imposed injunction placed on the agency could solve our problems in the short term. But that doesn't mean we should await a court outcome, which could occur many years from now. Congress needs to act to get the Clean Water Rule off the books for good.

Farm Bureau members can help put an end to this ridiculous rule. Contact your member of Congress to express opposition to the rule. Sign up for Farm Team. Tell your neighbors. Get engaged. Now is the time to act.

(Josh Rolph is manager of federal policy for the California Farm Bureau Federation. He may be reached at jrolph@cfbf.com.)

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