In a post last year, the Agriculture Law Education Initiative (ALEI) explained that on April 21, 2014, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) proposed a rule to define the term “waters of the United States” (WOTUS) under the Clean Water Act (CWA). In short, the proposed definition would broaden the current jurisdictional scope of WOTUS to encompass: 1) all water in a flood plain, 2) manmade water management systems, 3) water that infiltrates into the ground or moves overland, and 4) any other water which has a “significant nexus” to downstream water based on use by animals, insects, and birds, and 5) water storage considerations, all of which shift the focus of the Clean Water Act from water quality protection and navigable waters to habitat and water supply. If the proposed WOTUS rule becomes law, it has the potential to regulate many agriculture operations.
Ellen Steen, general counsel for the American Farm Bureau testified in March 2015 at a House Agriculture subcommittee that the WOTUS rule will create enormous uncertainty and vulnerability for farmers and ranchers nationwide. Steen explained that because ditches and ephemeral drainages are ubiquitous on farm and ranch lands – running alongside and even within farm fields and pastures – “the proposed rule will make it impossible for many farmers to apply fertilizer or crop protection products to those fields without triggering Clean Water Act ‘pollutant’ discharge liability and permit requirements.”
This week the House of Representatives passed The Regulatory Integrity Protection Act (HR 1732) by a vote of 261 to 155. The intent of the bill is to stop the WOTUS rule from being implemented. Bob Stallman, President of the American Farm Bureau Federation said of the passage "it was refreshing to see members of Congress order regulators back to the drawing board, with an admonition to listen to the very real concerns of people who would have their farm fields and ditches regulated in the same manner as navigable streams."
Recently, Sens. John Barrasso (R-Wyo.) and Joe Donnelly (D-Ind.) introduced a bipartisan Senate bill entitled The Federal Water Quality Protection Act which would require the EPA to withdraw the WOTUS rule, currently in its final stages, and refocus EPA’s efforts on protecting navigable waters.
The Federal Water Quality Protection Act requires the EPA and Army Corps to withdraw the rule and re-write their proposal with consideration of stakeholders and review of economic and small business input. The bill also requires EPA to adhere to definitions included in the bill, specifically limiting the reach of a new rule, and requires a comment period on the revised proposed rule of no less than 120 days, with a final rule published no later than Dec. 31, 2016.
According to the bill’s supporters, the legislation reaffirms the original intent of the Clean Water Act and provides clear direction regarding the types of water bodies which would not fall under Federal regulation under the Clean Water Act such as groundwater, natural and manmade isolated ponds, storm water and flood water management systems, constructed water systems, prior converted cropland, municipal and industrial water supply management systems, and puddles.
As expected, the Federal Water Quality Protection Act is supported by many agricultural groups such as the National Association of Wheat Growers and panned by environmental groups such as the Natural Resources Defense Council (NRDC). Here is NRDC’s take on the bill: http://switchboard.nrdc.org/blogs/jdevine/a_dirty_dozen.html .
Only time will tell whether water running through a farm ditch in Maryland will be considered WOTUS and therefore covered under the CWA. But if you are a landowner or farmer who will affected by either the WOTUS rule or the Federal Water Quality Protection Act, it is time to have your opinion on this matter heard by your legislators.