May/June 2014
Clean Water Rule By Dave Wilkins

Federal regulators issued a much-anticipated proposed rule on the Clean Water Act (CWA) this spring just as U.S. farmers were getting ready for another irrigation season.

The EPA and Army Corps of Engineers released the 371-page document on March 25. The proposal will be open for public comment for 90 days.

The proposed rule is designed to clarify which waterways are subject to discharge permitting requirements under the CWA. Some agriculture groups and lawmakers immediately blasted it as another example of government intrusion.

The proposal makes clear that most rain-dependent and seasonal streams would be protected even though they are dry much of the year.

About 60 percent of stream miles in the U.S. only flow seasonally or after rain, but have a considerable impact on downstream waters,” EPA officials said in defense of the proposed rule.

The proposal also specifies that all wetlands near rivers and steams will be protected.

According to federal regulators, farmers would seem to have little cause for concern.

“The proposed rule preserves the Clean Water Act exemptions and exclusions for agriculture … Any agriculture activity that does not result in discharge of a pollutant to waters of the U.S. still does not require a permit,” the agencies said in a joint statement.

The proposed rule does not extend CWA protections to any new types of waters that have not historically been covered under the landmark legislation, federal regulators said. Despite those assurances, farmers and ranchers have good reason to worry, the American Farm Bureau Federation (AFBF) said after a review of the proposal.

“Under the EPA’s proposed new rule, waters — even ditches — are regulated even if they are miles from the nearest ‘navigable’ waters. Indeed, so-called ‘waters’ are regulated even if they aren’t wet most of the time,” AFBF President Bob Stallman said in a statement.

Boise, Idaho attorney Scott Campbell, who specializes in water law, expects the proposed rule to become final with only a few changes to “placate” critics.

Campbell represents several irrigation districts in western Idaho.

“This is a huge overreach by the federal government to regulate virtually everything that pertains to water,” said Campbell.

Environmentalists have tried for years to expand the reach of the CWA, but having failed in Congress and the courts, they’re now pushing for the administrative rule change, he said.

The proposed rule will greatly increase liability exposure for irrigators and farmers and lead to a flood of civil lawsuits, Campbell predicted.

“It’s going to cost private property owners and state governments a huge amount, multiple millions, and it will have a huge depressive effect on the economy,” he said. “It’s a travesty.”

Some GOP lawmakers have expressed similar criticism.

Sen. Mike Crapo, R-Idaho, said the proposed rule would significantly expand the definition of waters of the U.S. to include ditches, ponds and other bodies of water that were never intended to fall under CWA authority.

“This announcement is a call to arms on property rights,” Crapo said in a news release.

Some ag groups were still analyzing the proposed rule in early April. The National Potato Council said it would likely issue guidance to its members before the end of the comment period.

The proposal was intended to provide clarity, but there is plenty of ambiguity in it, said Dan Keppen, executive director of the Family Farm Alliance. The Klamath Falls, Ore.-based group is dedicated to “protecting water for Western irrigated agriculture.”

One major question is how drainage ditches will be handled.

As the proposed rule is currently written, any ditch that drains into a tributary of a navigable water that is not in an “upland area” would seem to fall under the reach of the CWA, Keppen said.

If that’s the case, most Western irrigation projects would fall under CWA oversight, Keppen said.

“Right now, that’s the biggest concern we have,” he said. “Most drainage facilities are located if not in the flood plain, at least close to the flood plain and definitely not in an upland area.”

Attorneys and water managers with the alliance were reviewing the document in early April, and the group will submit comments to the EPA based on their findings.

EPA officials have assured the agricultural community that it will listen to its concerns.

The alliance will try to work with EPA in hopes of reaching a positive outcome that provides more certainty for irrigators, Keppen said.

If that doesn’t work, the organization may have to take a different approach more in line with the Farm Bureau and other harsh critics of the plan.

“We may end up taking that position too, but for the time being we are going to try to see if we can get our concerns addressed,” Keppen said.

“If we have to take the gloves off, we’ll do it,” he said.

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