In 1972 the Clean Water Act (CWA) was passed with a goal of improving water quality across the nation. To achieve this goal the CWA established a system of cooperative federalism that preserves primary state authority over land and water uses, but prohibits certain “discharges” into “navigable waters” from a “point source” unless authorized by federal permit. The law states that “navigable waters” are “waters of the U.S.” Two sections of the law have particular impacts on agriculture. Section 404 allows the Corps to issue permits for discharges of “dredge and fill” material into navigable waters. This section deals with any discharge that would result from moving the soil. It has an impact on farmers who want to plant trees, construct buildings, install drainage or simply just plow the soil. Section 402 establishes the National Pollutant Discharge Elimination System (NPDES) permitting program, in which EPA or states (with EPA oversight) can issue permits for discharges of other pollutants into navigable waters.

As is common with regulatory agencies, EPA and the Corps have slowly increased the scope of their jurisdiction, pushing the limit through guidance documents and regulatory enforcement actions based on ever-broader interpretations of “water of the U.S.” For example in 1986, EPA and the Corps used the “migratory bird rule” to assert authority over isolated waters by saying those waters that are or could be used by migratory birds, which cross state lines, are “Waters of the U.S.” The regulated community as well as the agriculture community pushed back, resulting in the Supreme Court decisions clarifying and limiting the scope of the agencies’ jurisdiction.

Now you ask, what does EPA propose to regulate? In basic terms, EPA used a draft “connectivity study” to claim that, from a scientific standpoint, all waters have a chemical and ecological nexus to one another. All waters are connected, a concept we all know. EPA then made a policy decision that all connections between waters are “significant,” regardless of how much or how often they actually have water, and should be equally and categorically regulated by the federal government with very few exceptions. Here is an example of the proposed rule:

EPA proposed to define a tributary as any feature with a bed and bank and ordinary high water mark (which EPA and the Corps view as any trench or discrete path of water with physical indications of water flow) that contributes flow to traditional navigable waters in any amount, whether directly or through other water bodies (which could be ditches, other “tributaries” or impoundments). Ponds, impoundments, lakes and wetlands would not need to have a bed and bank and ordinary high water mark to be tributaries if they “contribute flow.” Current regulations cover “intermittent streams” if they potentially affect interstate commerce, but the regulations do not mention erosional or “ephemeral” streams that move water only during rainfall or snowmelt. EPA does not believe that the amount, frequency or duration of flow should limit the definition of a tributary, specifically finding that ephemeral water features are “tributaries” if they meet the definition.

EPA has claimed time and time again that this would not affect farmers and would have minimal economic impact. However, farmers’ and ranchers’ ability to remain in production often depends on being able to use the types of farm practices that would be prohibited if EPA denies a permit for them. For example, building a fence or mowing grass across a ditch, applying fertilizer or pesticides to fields, discing or pulling weeds, clearing brush or even pruning trees could require a federal permit. The proposed rule, in effect, would give EPA authority to micromanage or even prohibit a farmer’s or rancher’s practices that are critical to the ability to operate—even if those practices have little or no actual effect on water quality.

It is vital for agriculture that the proposed rule does not become final or, if that is not possible, that the agencies change the rule substantially so that farmers and ranchers do not have to jump through the hoops of CWA permitting just to carry out routine farm or ranch activities.

Crystal Hyatt-Powell is the office manager for the Newton County Farm Bureau, which represents area farmers and those who are involved in or concerned about agriculture.