Proposed New Rule to the Clean Water Act is a Concern for Agriculture

Since the new rule was proposed, our office has been receiving 3-4 calls a week from farmers and those considering acquisition of lands for farming. The EPA and US Army Corps of Engineers have proposed rule changes to the Clean Water Act that provide “clarifications to the scope of the CWA”.   Those opposed to the new rule assert that the rule expands the jurisdiction of the agencies via the Clean Water Act and provides a broad expansion of the types of waters and lands that would be subject to a federal permit. In our humble experience, the new rule formalizes what the San Francisco and Sacramento office of the US Army Corps of Engineers have been taking jurisdiction of gradually over the last 6 years.  Drainages that transport water into a City storm-water system have been deemed jurisdictional even when the hydrological connection can’t be made under the assumption that “it drains into navigable water(s) eventually”. Roadside ditches that are created for the direct purpose to re-direct water away from or collect water off of an Interstate, road, or parking lot have been deemed jurisdictional. Agricultural ditches that transfer water from an irrigation ditch through the farming operation and back into another irrigation ditch are already jurisdictional Waters of the State in California.  We have observed a gradual scope creep of federal jurisdiction and the proposed rule gives authorization for even more. The statement about broadening exemptions for agricultural operations seems to be disingenuous at best. The US Army Corps of Engineers have already taken jurisdiction of thousands of acres of rice fields, tailwater ponds, and agricultural ditches.  The enforcement of the new rule will impact current agricultural operations and broaden the role that the EPA and US Army Corps of Engineers have on private farms. The guiding principles for the new rule come from extensive studies regarding the importance of connected waterways (Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence).

Feel free to read this report, but I can sum it up for you in 4 words: All waters are connected. 

The rule provides no protection from enforcement over other non-fill/discharge activities, such as weed control, fertilizer applications and any number of other common farm activities that may trigger CWA liability and permit requirements. Also, there is nebulous language that may change the definition of “normal and on-going farm practices”. Farmers MUST enroll with the National Resource Conservation Service (NRCS) to qualify for certain exemptions AND they must meet the “normal and on-going farm practices” definition AND they have to have been continuously farming the land since 1985 to qualify for exemptions. The new rule is an interpretive rule giving the EPA and US Army Corps of Engineers broader abilities to regulate water quality standards, discharge from ditches, and water conservation.

Based in large part from pressure by the California Farm Bureau Federation, the public comment period for this new rule change has been extended to July 21.

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