By Kari Fisher and Rayne Thompson
For the past six months, Farm Bureau has been urging the U.S.
Environmental Protection Agency and the Army Corps of Engineers to drop a
proposed rule that would allow them to expand their jurisdiction and
enforcement authority under the federal Clean Water Act. Now, there are
only days left to submit comments to EPA and the Corps—and it's
important for the agencies to hear directly from farmers and ranchers
who would be harmed by the proposal.
In discussions with EPA and the Corps, and with members of the
California congressional delegation, the California Farm Bureau has made
it clear that the rule should be withdrawn because of its significant,
direct effects on family farms and ranches. We have invited Washington,
D.C.-based regulators to California to see firsthand how the proposed
rule would affect routine farming practices. It's crucial for those
regulators to understand the impact this proposal would have on farms
and ranches.
Here's why: The proposed rule would significantly expand the federal
government's authority over small streams, ditches, floodplains and
other areas where water may flow—no matter how infrequently. The
proposal would give regulators room for inconsistent interpretation and
application, and could invite more enforcement actions and lawsuits by
activist groups.
The proposed rule would extend Clean Water Act requirements to areas
that have not been previously regulated as "waters of the United
States," such as seasonal drainages; ditches, including roadside, flood
control, irrigation, stormwater and agricultural ditches; water bodies
in riparian or floodplain areas; and isolated waters.
Under the proposal, virtually every area that gets wet or has flow
during rainfall could be regulated. For example, the rule asserts
jurisdiction over waters or wetlands located within a "floodplain" or
"riparian area" of a water of the U.S. Interpretation of these ambiguous
terms could result in large areas of farmland falling under newly
created federal jurisdiction. Additionally, the proposed rule would
include many, if not most, smaller waters and even dry land in the
definition of "waters of the U.S."
As a result, Clean Water Act permit requirements that apply to
navigable waters would also apply to most ditches, drains, small
ponds—and even depressions in fields and pastures that are only wet when
there is rain. This means a farmer or rancher would likely have to
obtain a permit prior to conducting activities such as spraying for
weeds or insects, disking, or pulling weeds. Permits are far from
guaranteed, may take months to obtain and often include paperwork,
consultation with other agencies and reporting requirements in addition
to any requirements aimed at protecting water quality. Not only that,
but permits are costly: An individual Section 404 permit application for
dredge-and-fill activities costs $62,166, plus $16,787 per acre of
impacts to "waters of the U.S."
Violations of paperwork or reporting obligations carry the same
potential penalties as unlawful discharges to waters of the U.S.—up to
$37,500 per violation per day. The proposed rule's expansion of
jurisdiction would also make many routine farming and ranching
activities vulnerable to lawsuits brought by environmental activist
groups.
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