Proposed Water Rule Threatens Agricultural Industry
(This article appeared as a guest column in the August 6, 2014 issue of the Weekly Market Bulletin published by the Department of Agriculture, Markets & Food)
Farmers across the United States could be subject to further regulation by the federal government. In March, the Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) published a proposed rule to clarify the scope of the Clean Water Act (“CWA”). The CWA was passed by congress in 1972 with the goal of restoring and maintaining waters of the U.S. Currently, the CWA applies primarily to “navigable waters,” defined as “waters of the United States, including the territorial seas.”
The proposed rule seeks to clarify the scope of the CWA by revising agency regulations that define “waters of the United States.” Like the current rule, the proposed rule would regulate traditional navigable waters, interstate waters and territorial seas as well as impoundments, tributaries and wetlands. However, the proposed rule expands the definition of tributary to include lakes, streams, canals and ditches without a bend and banks or high water mark if they contribute flow. The proposed rule also gives the CWA jurisdiction over “waters, including wetlands, adjacent to a water.” By including adjacent waters, not simply adjacent wetlands like the current rule, the proposed rule becomes more inclusive than the current rule.
The proposed rule will also bring “other waters” under the jurisdiction of the CWA provided they are found, on a case by case basis, to have a significant nexus to traditional navigable waters, interstate waters or territorial seas. The term “other waters” in the proposed rule applies to wetland and non-wetland waters, and having a significant nexus is defined as a water that has a substantial effect on the chemical, physical or biological integrity of a traditional navigable water, interstate water or territorial sea.
The EPA has stated the proposal does not exceed the CWA’s coverage or protect new types of waters that have not been historically protected. Officials have defended the rule, saying the changes are necessary to clear up confusion about the scope of the CWA. However, there has been significant backlash from agricultural groups who argue the proposed rule expands the jurisdiction of the CWA too far. Farmers fear they will have to pay for environmental assessments and permits when engaging in normal farming activity, like plowing, because of the potential impact on waterways that will be regulated under the proposed rule. The EPA has responded to these concerns, stating the proposed rule preserves the existing exemptions for normal farming practices.
Farmers are right to be worried about the potential impact of the proposed rule. If the rule is given its full effect, dry creek beds, ditches, and low spots in fields where water accumulates for short periods of time will fall under the jurisdiction of the EPA. Essentially, the rule has the potential to allow the EPA and Corps to regulate private land anywhere water can possibly flow. The public comment period for the rule closes October 20, 2014.
From Commissioner Lorraine Merrill:
” Our Guest Column in this issue is written by Clara Conklin, a third-year law student at Boston College Law School who grew up on her family’s dairy farm in Haverhill, NH. Clara is working as a summer associate at Nelson, Kinder & Mosseau, P.C. in Manchester, and hopes to practice in New Hampshire upon graduation next spring. Clara is interested in agricultural, environmental and land use law. Her topic is EPA’s proposed Waters of the United States rule. This rule along with the companion Interpretive Rule, has stirred up considerable controversy in the agricultural community across the country. For more information on the proposed rule and ‘Interpretive Rule,’ and to submit comments, go to http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm. “
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