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Waters of the U.S. rule needs clarity, farm groups say

Issue Date: June 22, 2022
By Christine Souza

California Farm Bureau President Jamie Johansson told leaders of the Environmental Protection Agency and the U.S. Army Corps of Engineers that the pending "waters of the United States" rule, or WOTUS, must be clear and concise and contain exemptions for normal farming activities.

"California's farmland provides many social and ecosystem benefits beyond a safe and affordable food supply, such as open space, habitat and carbon sequestration, and the scope of jurisdiction under the Clean Water Act is of fundamental importance to these benefits," said Johansson, who led a roundtable discussion among western states last week to discuss the rule.

Johansson said California farmers and ranchers deserve clarity and certainty on how the rule will be applied.

"We are also particularly concerned about the practical implications that could result in small, family-owned businesses needing costly legal and/or consulting expertise to farm ground that is already being thoughtfully and sustainably stewarded," Johansson said.

After accepting a proposal by the California Farm Bureau to lead a western geographic region roundtable, the agencies participated in a livestream discussion June 16. EPA and Corps of Engineers officials heard from business and farm groups, water managers, government agencies and others on the application of WOTUS in each of their respective states.

Last year, the agencies under the Biden administration rewrote the 2020 Trump administration WOTUS rule, with public comments on the draft due this past February. The Farm Bureau and others said Trump's version of WOTUS, the Navigable Waters Protection Rule, provided clearer guidelines while ensuring clean water.

In 2015, after the WOTUS rule was written, federal courts blocked its implementation in more than half of the states. This rule, which has been defined by the agencies since the 1970s, establishes the geographic scope of federal authority under the Clean Water Act.

Dan Keppen, executive director of the Family Farm Alliance, which advocates for farmers, ranchers and irrigation districts in 17 western states, said, "Over the past two decades, we've engaged in a variety of ping-pong administrative efforts now spanning four different presidential administrations, all of them aimed at clarifying the interpretation of the Clean Water Act.

"This vastly expands regulatory jurisdiction beyond just returning to the pre-2015 regulations and guidance as proposed in the rule," Keppen said. "Any possible expansion of WOTUS in a future rulemaking could transform the Clean Water Act into a federal land-use regulation."

Participants in the roundtable, including Keppen, said the rule as proposed could impact western farming communities by adding new, regulatory burdens for important infrastructure projects. They argued that would increase risks of litigation and undercut local and state water management.

Amanda Kaster, director of the Montana Department of Natural Resources and Conservation, said the federal rule should not be used to circumvent state primacy.

"Any rule adoption needs to recognize and protect the state's role in protecting the integrity of our waters," she said. "Vacillating between different WOTUS definitions or adopting an approach that creates more ambiguity and uncertainty makes it difficult for states trying to implement their federal Clean Water Act responsibilities."

Johansson shared information about state water regulations already in place.

"We have the Irrigated Lands Regulatory Program, and all farmers in the state who irrigate are required to be in this program, paying significant fees to monitor water quality…and mandatory nitrogen management programs," Johansson said. "There's a critical network in California that already monitors water quality of the state, so there would be significant duplication of processes with the new rule."

In discussing determinations on whether a waterway will be federally regulated, Keppen said, "We need crystal-clear exclusions from Clean Water Act jurisdiction from all of the western irrigation infrastructure. Otherwise, the entire western irrigation and drainage system could be classified as a WOTUS."

Without exemptions for irrigation infrastructure, Keppen said, the rule could disrupt the timing of water deliveries, result in fallowing, and lead to lengthy and costly litigation.

Greg Morrison, government relations officer for Elsinore Valley Municipal Water District in Riverside County, said water management agencies should be "excluded from the definition of the waters of the United States."

He said that should include "any infrastructure that is an integral part of facilities, water supply and treatment, stormwater management and treatment, flood control, wastewater treatment, recycled water production and distribution."

Morrison said such exclusions can protect the nation's waters in a manner that does not hinder operation or maintenance of crucial, health and safety services.

Exemptions for construction, operation and maintenance of ditches and maintenance of canals and drains, Keppen said, "provide important assurances that irrigated agriculture can continue to function without the need for Clean Water Act permits to work on these man-made features."

Many participating stakeholders suggested that the agencies postpone finalizing its pending WOTUS rule until the U.S. Supreme Court issues its decision in the pending case, Sackett v. Environmental Protection Agency.

A decision in that case could trigger the Biden administration to revise its pending WOTUS rule, which is expected to be finalized prior to the decision.

Sylvia Quast, senior advisor to the assistant administrator for the EPA Office of Water, thanked the Farm Bureau for leading the roundtable, though he said any new information heard in discussion could not be considered in the pending rulemaking because the comment period has ended.

But Army Corps official Stacey Jensen said she was pleased to hear the various perspectives and added, "From the Army's perspective, clear and consistent implementation is really what drives us, so the insights we heard today will be very helpful."

(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.

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