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Agriculture seeks clarity in revisions to U.S. water rules

Ag Alert / California Farm Bureau Federation
January 12, 2022
by Christine Souza

"The EPA and the Department of the Army have scheduled the following virtual public meetings on the rule: Jan. 12, from 7 to 10 a.m.; Jan. 13, from 11 a.m. to 2 p.m.; and Jan. 18, from 2 to 5 p.m. The public comment period is scheduled to close Feb. 7."

Farmers and ranchers are advocating for a federal "waters of the United States" rule under the Clean Water Act that is clear and concise and maintains exemptions for normal agricultural activities.

Upon review of the previous Navigable Waters Protection Rule done during the Trump administration, the U.S. Environmental Protection Agency and U.S. Department of the Army officials determined that the Trump-era rule reduces clean water protections.

The agencies said that a proposed rule revision would restore the regulations defining WOTUS that were in place for decades until 2015ówith updates to be consistent with relevant U.S. Supreme Court decisions.

EPA and Department of the Army officials heard from farmers and ranchers on the issue last week, during a roundtable discussion held by the U.S. Small Business Administration, Office of Advocacy.

Sylvia Quast, senior advisor to the assistant administrator for the EPA Office of Water, described the proposed rule as foundational for developing a durable definition of waters of the United States. "This is a system of rules around this definition that people have been working with for literally decades, and our hope is that that will provide people certainty in terms of planning your operations," she said.

Stefanie Smallhouse, an Arizona rancher and president of the state Farm Bureau, said "farmers and ranchers take stewardship of the land and water very seriously and strive to manage resources in such a way that the next generation will have the same opportunities that we have had."

Smallhouse said the 2015 rule "was overwhelmingly opposed by those of us in the agriculture community because it further expanded this footprint of the regulation in interpreting what qualifies as waters of the United States."

She added that the 2015 rule created "a complex matrix of qualifiers, while weakening the farming and ranching exemptions."

In contrast, she said, the Navigable Waters Protection Rule under the Trump administration brought clarity to what qualified as WOTUS through "bright line rules, while maintaining much needed farming and ranching exemptions."

"Clear and consistent exclusions provide regulatory certainty for farmers and ranchers given the potential for misapplication by agency staff and citizen plaintiffs filing suit under the Clean Water Act citizen provision," Smallhouse said. "Groundwater should continue to be excluded from the text of the rule and farm ditches, canals, ponds and similar features should continue to be excluded from the definition of WOTUS."

In discussing the need for clarity and consistency for farming exemptions, Smallhouse cited the Duarte Nursery v. U.S. Army Corps of Engineers case, in which California farmer John Duarte was accused of federal wetlands violations after plowing a Tehama County wheat field. He settled the government's Clean Water Act case against him in 2017.

"We have seen cases in the last decade, such as the Duarte case, which have taken the normal farming and ranching exemption and turned it on its head because the federal government essentially defined plowing as creating mountains and ridges within an area that should have been exempt," Smallhouse said. "There is (also) uncertainty in that exemption in what is actually considered prior-converted cropland and a change in crop being a change in use. This has been an issue in the past, and we felt that the Navigable Waters Protection Rule provided a very clear and concise definition of both."

Fourth-generation Illinois farmer Eric Kelsey discussed what it was like to work with the Corps to complete a farm pond project. He later learned that the project was cited by the EPA as evidence in federal court as an example of how the Navigable Waters Protection Rule was leading to environmental degradation.

"My situation was being used in federal court as evidence over environmental degradation. This compelled me to tell my story," he said.

"To me and many other farmers and small business owners in my area," he continued, "this is a story not about environmental degradation at all, or harm. It is about a private landowner and a farmer who sought to realize the full use and enjoyment of my property.

"And in doing so, I discovered that this process was intimidating, time consuming, confusing and expensive."

Lauren Lurkins, director of natural and environmental resources at the Illinois Farm Bureau, said she often helps farmers as they seek to comply with "a complex network of environmental laws that touch their operations."

"(Farmers) really want something that is basic in the form of: Who do I go to? Where can I reach them? Who has jurisdiction? And how can I get a project through a process?" she said. "Unfortunately, we also have people who find themselves after the fact with some pretty intimidating letters and phone calls from our federal agencies, and that is because they know it is a big deal with such heavy consequences. They're afraid of what they may have done wrong and feel unprepared."

Ted Schneider of the National Cotton Council of America and a Louisiana cotton farmer said farmers want a pristine environment and clean water.

"We aren't opposed to regulation at all when regulation is necessary, but for it to be effective, it has to be workable, clear and consistent," Schneider said.

Colorado rancher James Henderson, vice president of the state Farm Bureau, said the proposed rule "will have an absolutely real and adverse effect on my ability to conduct my business and create disparate impacts on our rural and agricultural economies."

The EPA and the Department of the Army have scheduled the following virtual public meetings on the rule: Jan. 12, from 7 to 10 a.m.; Jan. 13, from 11 a.m. to 2 p.m.; and Jan. 18, from 2 to 5 p.m. The public comment period is scheduled to close Feb. 7.

For more information, see www.epa.gov/wotus/revising-definition-waters -united-states.

(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.



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