Farmers welcome stay of U.S. ‘waters’ rule


Issue Date: October 14, 2015
By Christine Souza
San Joaquin County farmer Brad Goehring shows tire ruts left by a tractor on his property that could be regulated by the “waters of the U.S.” rule under the Clean Water Act. The rule defines which waterways and wetlands fall under the jurisdiction of the U.S. Environmental Protection Agency and Army Corps of Engineers.
Photo/Ching Lee
Application of composted manure, a common farming practice as shown in this San Joaquin County vineyard, could be prohibited in areas covered by the EPA’s “waters of the U.S.” rule.
Photo/Ching Lee

Efforts to overturn new federal regulations governing "waters of the U.S." will continue, farm leaders say, despite a federal appeals court ruling that has blocked the rule's implementation nationwide. The rule would bring more waterways and wetlands under protection of the Clean Water Act, and has been criticized by farm organizations for potentially widespread restrictions on farmland and agricultural activities.

The court ruling, issued last Friday, temporarily suspends implementation of the waters of the U.S. rule, known by the shorthand WOTUS, in 37 states that had been unaffected by an earlier ruling.

"Hearing of the stay was a huge relief for farmers, but they still need to be cautious as the stay is temporary. The fight to rescind the rule is by no means over," said California Farm Bureau Federation President Paul Wenger, who farms walnuts and almonds in Modesto.

Judge David McKeague of the Cincinnati-based 6th U.S. Circuit Court of Appeals said that "a stay will, consistent with Congress's stated purpose of establishing a national policy, restore uniformity of regulation under the familiar, if imperfect, pre-rule regime, pending judicial review."

CFBF Associate Counsel Kari Fisher noted that the nationwide stay will remain in effect until the court rules on whether it has jurisdiction to hear the case. Although the court action represents good news for those in agriculture interested in sending the regulation back to the drawing board, Fisher said, the stay of the regulation is temporary and does not mean the struggles with the WOTUS rule are over.

"The California Farm Bureau Federation is pleased with the court's decision to stay the enforcement of the rule, while the court rules on this jurisdictional issue. We acknowledge that it is only temporary, but it's a positive ruling for farmers and ranchers," she said.

San Joaquin County winegrape grower Brad Goehring has taken an active role in communicating to legislators in Washington, D.C., and in California the WOTUS rule's detrimental impacts to farmers, ranchers and other landowners.

In the course of his typical farming activities of moving equipment, preparing land and applying soil amendments last Friday, he became aware of the court's decision to stay the WOTUS rule. Goehring, who has likened the impact of the rule to being "punched in the gut," said much of the land he farms could eventually come under the rule's jurisdiction.

"The ruling that was announced is just liberating," Goehring said. "The problem is, this is temporary at best. We still need to continue fighting against the rule."

Farm Bureau and other opponents say the rule greatly expands the regulatory authority of the U.S. Environmental Protection Agency and the Army Corps of Engineers, by increasing the number of waters that would fall under the agencies' jurisdiction and expanding the lands surrounding those waters into their jurisdiction due to newly required setbacks.

"We need farmers to understand although this is a rule of waters, it affects all the surrounding lands," Goehring said.

An online, interactive map posted on the CFBF website shows how land within California could be affected, with as much as 95 percent of the state's surface area potentially falling under jurisdiction of the rule; see story.

The EPA and the Corps have said the rule would assist them in determining what streams, wetlands, ponds and ditches would be subject to regulation under the Clean Water Act and provide clarity about which waterways should be protected against pollution. The rule could ultimately require additional permits and increase areas that would be placed under restricted use.

American Farm Bureau Federation President Bob Stallman said the appeals court recognized that the rule has "serious flaws," and cannot go forward until the courts have had an opportunity to understand its effect on farmers, ranchers and other landowners.

"The judges expressed deep concerns over the basic legality of this rule. We're not in the least surprised: This is the worst EPA order we have seen since the agency was established more than 40 years ago. The court clearly understood our arguments," Stallman said.

He noted that getting to a final court ruling could take years, at great cost to all involved.

Farm Bureau supports passage of S. 1140, the Federal Water Quality Protection Act, which would require the EPA to withdraw the rule and adhere to limiting principles that would ensure that any new proposal conforms to jurisdictional limits set by Congress and affirmed by the Supreme Court.

The stay issued last week will be temporary until the court determines whether it has jurisdiction over the petitions for review. Regarding how long the stay may be in place, the opinion said, "Briefing on the jurisdictional question will be completed and the question ripe for decision in a matter of weeks."

(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.