EPA's water rules are finally starting to make sense for farmers

After years of controversy and litigation, the administration’s new Clean Water Rule provides a great opportunity for a fresh start. The Environmental Protection Agency and U.S. Army Corps of Engineers want to hear directly from the public — especially those impacted by the rule, including farmers and ranchers. This helps ensure the new rule adheres to the law, protects our water and provides easily understood rules. This transparent approach is a breath of fresh air, but with the comment period on the new rule closing April 15, there’s no time to lose.

EPA Administrator Andrew Wheeler wants the new rule to be solidly based on the law and workable for all Americans. Farmers and ranchers should be able to look at their land and easily identify what is a “water of the U.S.” and what isn’t. This rule would finally provide that kind of clarity. 

ADVERTISEMENT

The proposed rule protects water and makes plain what is regulated at the federal and state level — an important balance Congress struck with the Clean Water Act. The new rule would put a stop to the federal agencies’ unpredictable and inconsistent case-by-case approach for determining jurisdiction. With past rules and regulations, farmers have found themselves under a cloud of uncertainty — or worse yet, subject to bureaucrats controlling what happens on the land where we make our living. 

EPA’s new rule is grounded in the law, not driven by political whims. The proposed “waters of the U.S.” definition is based on the Clean Water Act and consistent with Supreme Court precedent. It also helps correct past agency practice, guidance and interpretations that improperly expanded the scope of federal authority under the CWA. 

For too long, uncertainty and inconsistency have spread the EPA and the Corps’ jurisdiction further than Congress said it should go. While there is still room for improvement in the proposal, the new Clean Water Rule would help set things right. For example, the proposal adds greater clarity to what is jurisdictional and what is not, placing the burden of proof for determining jurisdiction where it should be: on the government, not landowners. 

Where previous rules and regulations have muddied the waters in attempts to control more land, this new rule protects our nation’s water by providing clear and appropriate definitions for tributaries and adjacent wetlands. EPA would have jurisdiction over streams that actually flow into navigable waters and wetlands which are next to regulated waters — just as Congress intended all along with the Clean Water Act.

The new Clean Water Rule doesn’t just ditch the bad but also keeps important exclusions that work for agriculture. For example, the proposed rule retains an exclusion from the 2015 rule for “groundwater, including groundwater drained through subsurface drainage systems.” It also excludes “ephemeral features and diffuse stormwater run-off, including directional sheet flow over upland.” And finally, it clarifies the prior converted cropland exclusion for any area that was drained or otherwise made “farmable” prior to Dec. 23, 1985. The proposed rule also applies clear abandonment principles consistent with a 1993 rule in cases where prior converted cropland “is not used for, or in support of, agricultural purposes at least once in the immediately preceding five years.”

ADVERTISEMENT

The proposal also includes other important man-made water storage exclusions critical to keeping a farm and ranch running smoothly, including ditches, artificial lakes and ponds, artificially irrigated areas, and stormwater control features. 

This proposal respects congressional intent, follows science and provides clear rules for farmers and ranchers to follow. It deserves support from all those who value clean water and commonsense rules.

Zippy Duvall is the president of the American Farm Bureau Federation. Follow him on Twitter at @ZippyDuvall .