Puddles, ponds, ditches, ephemerals (land that looks like a small stream during heavy rain but isn’t wet most of the time) and isolated wetlands dot the nation’s farmland. The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) on June 29 finalized a rule that expand its regulatory authority under the Clean Water Act (CWA) to these types of land features and waters, giving the agencies the power to dictate land-use decisions and farming practices in or near them. On August 28, the new rule became effective, making it more difficult to farm or change a farming operation to remain competitive and profitable.
How Did We Get Here?
Congress passed the CWA in 1972, banning discharges of pollutants from a point source (i.e., a single source or conveyance) into navigable waters without a federal permit.
The CWA has established a system of cooperative federalism that gives federal agencies—mainly EPA and the Corps—the authority to regulate navigable waters. The law calls these “waters of the U.S.” State and local governments have jurisdiction over smaller, more-remote waters, such as many ponds and isolated wetlands, because state and local governments are more accountable to their citizens and more in touch with local environmental and economic situations.
Two sections of the law have particular impacts on agriculture. Section 404 requires anyone wanting to discharge “dredge and fill” material into navigable waters to obtain a federal permit. This section deals with any discharge that would result from moving the soil. It has impacts for individual landowners and homebuilders, as well as farmers who want to plant trees, construct buildings, install drainage, deep-plow the soil—the list goes on. Section 402 establishes the National Pollutant Discharge Elimination System permitting program to enforce discharge mitigation requirements and limit point source discharges into navigable waters.
EPA and the Corps continually have tested the jurisdictional limits of the CWA over the last 40-plus years by issuing guidance documents and regulatory enforcement actions based on ever-broader interpretations of “waters of the U.S.” Specifically, in 1986, EPA and the Corps used the “migratory bird rule” to assert authority over isolated waters by saying those waters that are or could be used by migratory birds, which cross state lines, are interstate waters or “waters of the U.S.” The regulated community, including agriculture, has pushed back, resulting in precedent-making court decisions concerning the scope of the agencies’ jurisdiction.
In two cases—Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, in 2001, and Rapanos v. United States, in 2006—the Supreme Court rendered decisions that reaffirmed the CWA’s limit on federal jurisdiction, drawing the line at navigable—the migratory bird rule notwithstanding. The American Farm Bureau Federation filed amicus briefs in both cases.
However, the 2006 Rapanos ruling was not as clear-cut as the 2001 SWANCC decision, and not as clear as Farm Bureau would have liked. Eight justices divided evenly between supporting the broad reach of EPA/Corps regulations and affirming that the CWA covers only navigable waters. One of the justices, Anthony Kennedy, was an outlier, writing that a significant nexus between an isolated wetland and a traditional navigable water could be enough for federal jurisdiction. Justice Kennedy did not define significant nexus, and the proverbial waters have remained murky ever since.
Ditch the Rule!
In finalizing the new “waters of the U.S.” final rule, EPA (the lead agency on the rule) has said that it is clarifying the scope of the CWA. However, EPA’s “clarification” is also a broad expansion of the types of waters that would be subject to federal permit requirements and limits on farming practices and other land-uses.
EPA also has claimed that the rule will have minimal economic impact and would not affect many acres—only about 1,300 acres nationwide—a laughable assertion when one considers the amount of acreage in just one state or even county that has hydric soils and, therefore under EPA’s proposal, adequate characteristics to be considered “waters of the U.S.”
Farmers’ and ranchers’ ability to remain in production often depends on being able to use the types of farm practices that would be prohibited if EPA denies a permit for them. For example, building a fence across a ditch, applying fertilizer or pesticides, or pulling weeds could require a federal permit. The proposed rule, in effect, would give EPA veto authority over a farmer’s or rancher’s ability to operate.
THANK YOU to the thousands of farmers and ranchers who submitted comments to EPA and the Corps of Engineers expressing your concerns and opposing the rule. Unfortunately, the agencies finalized the rule, and made it even worse. The rule may be final, but our job is not over.
Now, we need Congress to act. The House has passed a bill to prevent the agencies from implementing the rule. Please ask your senators also to rein in the agencies’ effort to expand their control over farmers’ and other landowners’ use of their land. Congress must require the agencies to go back to the drawing board and work with state and local governments to draft a proposal that works for landowners and preserves the federal-state balance Congress established when it passed the CWA.
We hope you will use the resources on this website to urge your senators to help us Ditch the Rule!