A rule intended to clarify the federal Clean Water Act appears to have instead muddied the waters.
“This is clearly the largest reordering of the Clean Water Act since it was initially passed in 1972,” says Don Parrish, senior director of regulatory relations with the American Farm Bureau Federation. “For someone who is a Clean Water Act practitioner, it is extremely frustrating.”
Parrish has worked on Clean Water Act issues for more than two decades. His frustrations stem from both how the new rule was written and his belief that its implementation is likely to impact land management. There’s not a farm or ranch in America that won’t be affected, Parrish adds.
Differing Interpretations
In May 2015, the EPA released the Waters of the United States (WOTUS) final rule under the Clean Water Act. EPA officials say that WOTUS is an effort to restore—not expand—the federal government’s authority to limit pollution in the nation’s rivers, lakes, streams and wetlands.
But many agricultural groups and trade associations see WOTUS as an attempt to increase the EPA’s jurisdiction to regulate waters not originally covered by the Clean Water Act. Under the new rule, federal regulations would expand to ephemeral or short-lived water sources that only flow during rain events and headwaters that show physical features of flowing water—such as a bed, bank or high-water mark. Regulations also would apply to waters that are next to rivers and lakes and their tributaries. Previously, only perennial and intermittent tributaries and adjacent wetlands were deemed jurisdictional, absent a case-specific finding.
“Clearly, this will make the Clean Water Act a super-statute,” Parrish says.
Many critics think that the rule is vague when defining “water,” “dryland” and other terms used in the rule. For example, “ditch” means different things to different people around the country.
While EPA officials tell growers and ranchers normal agricultural practices will be exempt under the rule, many opposed to the regulation claim the exemption isn’t spelled out. They argue the rule seems to say all water bodies—whether in a field or at the edge of a field—that discharge into a waterway navigable downstream must meet all water quality standards as set by the state.
“The EPA knew how to put safeguards in the regulation [to ensure the agricultural exemption], and they didn’t put those words in the rule,” Parrish says. “Words are hollow unless you put the safeguards in the regulation.”
Site-Specific Regulation
Parrish and others say that without the clarification about agricultural practices, growers or ranchers applying fertilizer or pesticides to their fields or pastures may find themselves afoul of the rule if they apply those products over or too near a feature determined to be waters of the U.S. Unfortunately, growers won’t be able to tell if a ditch or stock pond qualifies as a water of the U.S. with the naked eye.
Determining what qualifies as a water of the U.S. is left up to the EPA’s discretion. Regulators can use historical maps and other indicators to determine significant connections to a waterway. But judges may eventually make the final ruling. Laura Peterson, head of federal government relations at Syngenta, describes the site-specific analysis detailed in the rule as still somewhat ambiguous.
“Clean Water Act jurisdictional determinations are so site-specific, so local,” Peterson says. “This rule upset a lot of people. It’s confused a lot of people. The EPA thought it was providing clarity, but it seems to have raised a lot of questions.”
Peterson recommends that growers and ranchers keep close tabs on the new rule and how it applies to their individual operations while the fight over WOTUS continues in both the courts and Congress. “Make sure you are compliant when implementing practices,” she says.
Syngenta works diligently with its grower customers to help ensure they apply crop protection products in a manner that prevents those products from entering water bodies, says Mark White, regulatory stewardship manager for Syngenta. But despite those strong stewardship ethics, it may be difficult—if not impossible—to use those products if a ditch or erosional feature in a field is deemed a water of the U.S.
“Farmers will ask, ‘Can I even afford to farm this area or part of the field?’” White says.
What’s Next?
Even though the rule is “final,” growers haven’t seen the end of it, Peterson says. The U.S. House of Representatives overwhelmingly passed a bill to stop the rule’s implementation, and the U.S. Senate is considering similar action. However, it is unclear whether there are enough votes in Congress to overturn a likely presidential veto.
That’s why it is so important for growers and ranchers to contact their legislators. “Congress needs to know that the EPA has overreached,” Parrish explains.
In October, a federal appeals panel issued a nationwide stay on the Waters of the U.S. rule, which means the EPA cannot implement the rule currently. Court watchers expect the issue to eventually end up before the U.S. Supreme Court.