The proposed Waters of the U.S. Rule, “unless dramatically altered,” will result in potential Clean Water Act liability and federal permit requirements for a tremendous number of commonplace and essential farming, ranching and forestry practices nationwide, according to the American Farm Bureau Federation.
In testimony today, AFBF General Counsel Ellen Steen told a House Agriculture subcommittee that the WOTUS rule will 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.”
According to AFBF’s general counsel, several statutory exemptions demonstrate a clear determination by Congress not to impose Clean Water Act regulation on ordinary farming and ranching activities. However, agency and judicial interpretations over the past several decades have significantly limited the agricultural exemptions that have traditionally insulated farming and ranching from Clean Water Act permit requirements.
“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. “The result would be wide-scale litigation risk and potential Clean Water Act liability for innumerable routine farming and ranching activities that occur today without the need for cumbersome and costly Clean Water Act permits.”
Steen explained that because ditches and ephemeral drainages are ubiquitous on farm and ranch lands—running alongside and even within farm fields and pastures—“the proposed rule will make it impossible for many farmers to apply fertilizer or crop protection products to those fields without triggering Clean Water Act ‘pollutant’ discharge liability and permit requirements.”
“A Clean Water Act pollutant discharge to waters of the U.S. arguably would occur each time even a molecule of fertilizer or pesticide falls into a jurisdictional ditch, ephemeral drainage or low spot — even if the feature is dry at the time of the purported ‘discharge,’” Steen told the subcommittee. For this reason, farmers’ options under the rule are limited.
According to Steen, “they can either continue farming, but under a cloud of uncertainty and risk, they can take on the complexity, cost and equal uncertainty of Clean Water Act permitting or they can try to avoid doing anything near ditches, small wetlands, or stormwater drainage paths on their lands. It’s a no-win situation for farmers and ranchers.”