‘Waters’ rule takes effect in California

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By Christine Souza
Roney’s ranch in Tehama County use a variety of management practices to protect water quality, such as providing drinking water for livestock so the animals are kept away from waterways and other sensitive areas. Photo/Kathy Coatney

California farmers and ranchers face much uncertainty about the new Clean Water Act rule by the U.S. Environmental Protection Agency and Army Corps of Engineers that became effective last Friday. The uncertainty grew last week, after a federal judge in North Dakota granted an injunction sought by 13 states to prevent the rule from taking effect, and as specialists finalized work on a map that shows as much as 95 percent of California’s land area might fall under the rule’s jurisdiction.

Known alternately as the Waters of the U.S. Rule or the Clean Water Rule, the provision aims to regulate small streams, tributaries and wetlands. Opponents of the rule say it greatly expands federal jurisdiction over many landscape features found on private lands—including farm, ranch and forest lands—and may ultimately require additional permits and increase areas that would be placed under restricted use.

Kari Fisher, California Farm Bureau Federation associate counsel, said that soon after the federal court injunction was granted, the EPA released a statement saying the injunction applies only to those 13 states involved in the North Dakota litigation. While some have interpreted the injunction as applying to all states, Fisher said the rule remains in effect for the 37 states not involved in the litigation, including California.

“For California, EPA’s position is that the rule is effective and enforceable,” Fisher said. “Farmers and ranchers need to be aware of the rule’s potential impacts to their farming operations.”

San Joaquin County winegrape grower Brad Goehring said the waters of the U.S. rule is damaging to agriculture.

“Most everything is now considered a water of the U.S., and permitting for farmers will be too costly. This is basically criminalizing farming,” Goehring said. “I think it is the biggest violation of private property rights in the history of the United States, because the rule is so broad and it encompasses everything.”

To help farmers and ranchers understand how the rule could be applied, CFBF worked with the American Farm Bureau Federation and mapping company Geosyntec Consulting, to develop an interactive map of the state that details land features and activities regulated under the rule. Similar maps have been created for other states, including Montana, Missouri, Virginia and Pennsylvania.

Analysis by the mapping firm revealed that as much as 95 percent of California’s surface area could be affected by the new rule, depending on how it is interpreted.

“This is regulatory overreach at its worst,” CFBF President Paul Wenger said. “It’s nothing more than a land grab by the federal government that will make farming more difficult.”

Wenger said landowners have “no reliable way to know” what water and land within the area subject to EPA enforcement will be regulated, “yet they must still conform their activities to the new rule.”

The California map has different layers to show the potential impact of the rule. A base layer shows areas regulated as tributaries and adjacent wetlands. Another layer adds “ephemeral streams”—low spots in the land that drain and channel water away from farmland after a rain but are otherwise dry—which, under the new rule, are regulated as tributaries, AFBF said.

According to Farm Bureau, that added jurisdiction would allow agencies to use Clean Water Act authority to prohibit many common agricultural practices in or around these ephemeral features. Under that scenario, any unpermitted discharge of pesticides, fertilizer or even disturbed soil would leave farmers vulnerable to enforcement by the agencies, or by private citizens, with severe potential penalties.

The map’s next layer shows how the rule expands the definition of regulated “adjacent waters” to cover all waters, including wetlands, that lie even partially within 100 feet on either side of the newly regulated ephemeral drains. The map also shows waters or wetlands that are within the 100-year floodplain of a tributary, but not more than 1,500 feet from the tributary. This, Farm Bureau said, is where significant uncertainty comes in.

The uncertainty springs from the fact that many areas lack flood-zone maps, AFBF said, and that many of the existing maps are out of date. Most ditches and ephemeral streams do not have mapped flood zones, leaving farmers and other landowners without the basic tools needed to identify wetlands or other waters that are automatically regulated under the new rule, AFBF said.

The final map layer covers waters that are not “tributaries” or “adjacent” but may still fall under the rule’s jurisdiction, based on a “significant nexus” to downstream waters. The rule allows regulation of waters, including wetlands, that lie even partially within 4,000 feet of any tributary. Mapping 4,000 feet from even just the known ephemeral streams shows that this 4,000-foot zone covers the entire landscape in many parts of the country, including California, AFBF added.

AFBF President Bob Stallman said the rule creates “increased legal risk and uncertainty” for farmers and ranchers nationwide.

“We do not expect to see any agency increase in Clean Water Act enforcement against farmers and ranchers in the short term,” Stallman said, “but we do expect substantially more enforcement over the longer term—and enforcement can impose penalties for discharges that occurred over the past five years. Farmers and ranchers are advised to proceed with caution around any features defined as waters of the U.S. under the new rule.”

Stallman called on Congress to pass S. 1140, the Federal Water Quality Protection Act, which would require the agencies to withdraw the rule and start over.

(Christine Souza is an assistant editor of Ag Alert. She may be contacted at csouza@cfbf.com.)

Credit to the California Farm Bureau Federation for this article.