WOTUS and Agriculture: What Happens Next?

by Robin Madel

Published: 5/01/17, Last updated: 5/24/19

To say that farmers got Trump elected is to simplify a complex set of variables leading up to Election Day (nobody knew elections could be so complicated!). Nevertheless, some farmers, in their despair over declining rural economic opportunity and fury over a new water quality rule, unarguably played an important role.

Now that Sonny Purdue has been officially sworn in as Secretary of Agriculture, he’s tasked with improving rural economies, while the new EPA Chief Scott Pruitt will try to overturn President Obama’s 2015 Clean Water Rule, also referred to as the Waters of the US (WOTUS) rule.

For a good read on the genesis of WOTUS and how it would have impacted farmers read Brad Plumer’s article

What is the Clean Water Rule?

The rule was put into place in 2015 to clarify some confusing 2006 updates to the existing Clean Water Act (CWA) which, from its inception, only covered what are considered to be “navigable waters” and the waters directly connected to them. The CWA never clarified how  water bodies like isolated wetlands and ephemeral streams — streams that are wet intermittently during certain times of the year, a classification which covers about 60 percent of US streams — are related to this notion of “navigable waters.”  In other words, does the CWA apply if you pollute something that looks like an isolated or intermittent water body or build over isolated wetlands?

The confusion stems from a 2006 Supreme Court case, in which there was no majority decision on which water bodies were considered “waters of the United States.” The most prominent dissenters in the case, Justices Scalia and Kennedy, provided differing interpretations of what the CWA covers. Justice Scalia took the view that WOTUS should include “only relatively permanent, standing or continuously flowing bodies of water because that was the definition of ‘the waters’ in Webster’s Dictionary.” Justice Kennedy, on the other hand, believed that “[A] wetland or non-navigable waterbody falls within the scope of the Clean Water Act’s jurisdiction if it bears a ‘significant nexus’ to a traditional navigable waterway.” Because no single opinion received the most votes, it wasn’t clear which opinion controlled jurisdiction of wetlands and intermittent streams, but Kennedy’s narrower interpretation was carried over into the language of the rule.

According to Clean Water Action, the WOTUS rule covers “20 million acres of wetlands [and] 60 percent of all streams, including headwater, intermittent and ephemeral streams that supply public drinking water systems that serve 117 million Americans — 5,646 public water supply systems.” It was supposed to be uncontroversial; however, once the rule was passed, it was anything but.

Supporters cheered the rule because it provided necessary clarification about which water bodies were automatically covered and didn’t broaden CWA authority — meaning that no new categories of waters were created, plus groundwater wasn’t added under its coverage. Nevertheless, the agriculture, fossil fuel and construction/real estate development industries instantly expressed deep concerns, calling it “a monumental land grab.”

Why Doesn’t Big Ag Like the Clean Water Rule?

The Farm Bureau claimed that the rule expanded federal jurisdiction over private property and would be damaging to farmers and ranchers because of permitting requirements and compliance costs, claiming that, “Government regulation will become an even bigger challenge for farmers and ranchers than the weather.”

The reality of the rule as it was passed, however, kept all existing exemptions for normal farming activities and provided a clear, working definition of what waters are not covered by the CWA, many of which pertain to farmland (e.g., non-tributary ditches).

Not all farmers were opposed to WOTUS. Farmers like John Gilbert, a livestock producer from Iowa acknowledged that “If we don’t have clean water, we don’t have clean food.” Even the National Farmers Union, while opposing any expansion of jurisdiction of the CWA, acknowledged that the EPA “took the concerns of family agriculture under serious consideration,” adding that, “the final rule puts bright-line limits on jurisdiction over neighboring waters, offering farmers increased regulatory certainty.”

Spurred on by language from groups like the Farm Bureau, Big Ag and even some grass-fed and organic farmers and ranchers voiced strong concerns over changes to how farmers use their land. California rancher Wally Roney, for example, was concerned that the rule might limit where thirsty cows could drink on his land.

Calls to “Repeal WOTUS” became a campaign rallying cry for Trump’s followers in some rural areas. One of Trump’s first acts after he took office was to sign an Executive Order that repealed WOTUS, which had yet to even take effect. Trump’s Executive Order requires the EPA and Army Corps of Engineers (the two agencies responsible for implementing the rule) to reconsider WOTUS in light of Justice Scalia’s decision.

Isn’t Our Water Clean Enough?

Given the resources already expended on the issue and those about to be tapped, it might be tempting to ask if we even need the rule in the first place. Aren’t our waters clean and regulated enough already? The answer, it turns out, is no.

The original Clean Water Act and its ensuing amendments covered navigable waters and the pollution that came from single sources like factory pipelines — referred to as “point source pollution.” The law did a good job of cleaning up surface waters and restoring many rivers. It also, unfortunately, left too much uncertainty about several classes of waters, and throughout the years, most cases of pollution and wetland destruction were decided on individual bases, often through lengthy court battles.

The WOTUS rule was intended to provide detailed guidance to cover most scenarios. In order to do this, the EPA received significant feedback in the form of over 400 stakeholder meetings, more than 1 million public comments and over a thousand scientific articles to support writing the rule.

The rule acknowledges the significant influence of disconnected and ephemeral water sources on downstream water bodies. In fact, the EPA held advisory board meetings and had committee meetings and panel discussions which resulted in a 103-page report that details how streams and wetlands are connected to downstream waters and why those connections are important.

Yet, in spite of all this effort and an extensive scientific review process, in 2014 several farming and ranching groups were not happy. The groups cited the problems they perceived for the agricultural community if the rule were to pass. One group, Nebraska Cattlemen, stated that, “[T]hrough this jurisdictional rule there is no limit on EPA’s determination of what constitutes a ‘waters of the US'”. They claimed that the definition of certain ephemeral water features like ditches and the criteria for determining what is adjacent was “overly broad.”

The fury such language whipped up was unfortunate, especially considering that the rule contained fewer requirements for farmers than before. The EPA worked to dispel the myths but it was too little, too late. The damage was done and many farmers considered the new rule to be a land grab and government overreach, regardless of the numerous agricultural exemptions.

What’s Next for WOTUS?

Pruitt will have to first repeal then replace the rule, but in order to do that, he has a real challenge on his hands and repeal won’t come easily.  He and his staff members will have to re-evaluate what was thought to be settled science behind stream connectivity in order to create a new rule that favors Scalia’s decision. Pruitt has already expressed distrust of his staff that spent years going through the process of creating the rule in the first place. He is considering outsourcing the replacement rule to industry members, a move legal experts call unethical.

What gets lost in all of this political wrangling is the (once again) declining health of our waterways. The threat to downstream water quality remains. The impacts of conventional agriculture on water quality are growing and so are the examples that illustrate those impacts. Harmful algal blooms that make water undrinkable, unswimmable and toxic to fish and other aquatic organisms, massive dead zones in places like the Gulf of Mexico that decimate aquatic habitats for acres and acres and bacterially contaminated waters made worse by overuse of antibiotics in farm animals, are just a few of the significant impacts caused by the connections of water bodies on farmlands.

Agriculture accounts for over 50 percent of land use in the US. Farmers have a deep connection to the land. Many farmers are and always have been good stewards of both land and soil and they recognize the necessity of clean, abundant water to produce food that is both nutritious and healthy. But the problems associated with agricultural run-off, encouraged by industrial farming practices, are growing. While there are limited incentive and conservation programs that encourage protection of water quality through farming activities, as a country, we have to do more. The future of our water quality and our food supply depend on it.

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