This spring, the federal government is scheduled to decide on the proposed “waters of the U.S.” rule, which threatens to expand the scope and control of the government from the current rule over navigable waters to affect all bodies of water. For years, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) have written regulations that cross over to smaller bodies of water, but those regulations have been repealed by the hand of the U.S. Congress, according to the American Farm Bureau.
As the law stands, the EPA and the Corps only hold legal say over bodies of water that are navigable, or waters large enough for use by boats.
“Our understanding of navigable, is ‘water large enough so you can drive a boat on it’– not a drainage ditch,” explained Linsey Dale of the Imperial Valley Farm Bureau. “Smaller bodies of water like ditches, ponds, and puddles are under state and local jurisdiction.”
The proposal comes up for discussion this week by the Senate Agriculture Committee and was the subject of a hearing by a House Agriculture subcommittee last week on its potential impact on rural America.
Dale, the Imperial Valley Farm Bureau executive officer, said the Farm Bureau is concerned about the impact the rule would have on family farmers and ranchers.
At the House Agriculture subcommittee hearing last week, the American Farm Bureau Federation said that unless dramatically altered, the water bill rule would result in potential Clean Water Act liability and federal permit requirements for a large number of commonplace and essential farming, ranching and forestry practices.
“The federal water rule would be devastating. It could require federal permits to use chemicals, to irrigate, to order water. It is crazy,” Dale said.
Last week, AFBF General Counsel Ellen Steen told subcommittee members the rule would create enormous uncertainty and vulnerability for farmers and ranchers nationwide.
“It is impossible to know how many farmers, ranchers and forest landowners will be visited by (EPA) enforcement staff or will be sued by citizen plaintiffs’ lawyers — and it is impossible to know when those inspections and lawsuits will happen,” Steen said. “But what is certain is that a vast number of common, responsible farming, ranching and forestry practices that occur today without the need for a federal permit would be highly vulnerable to Clean Water Act enforcement under this rule.”
Acts by past congresses clearly have indicated that farmers are not under jurisdiction of the Clean Water Act for their farming grounds with exemptions always made for farming.
“Much of the remaining benefit of those exemptions would be eliminated by an expansive interpretation of ‘waters of the United States’ to cover ditches and drainage paths that run across and nearby farm and pasture lands,” Steen testified.
Members of the House Committee on Agriculture asserted that the administration has acted on its own, without input from the states and stakeholders, to broaden the scope of the act.
“The EPA’s proposed rule could have serious consequences for our nation and prove to be a severe detriment to our economy, with a particularly strong impact in rural counties,” said Rep. Glenn Thompson, R-Pa., chairman of the House Agriculture Subcommittee on Conservation and Forestry.