Ag Alert Jan. 12, 2022

Agriculture seeks clarity in revisions to U.S. water rules

empt,” Smallhouse said. “There is (also) uncertainty in that exemption in what is actually consideredprior-convertedcrop- land and a change in crop being a change in use. This has been an issue in the past, and we felt that the Navigable Waters Protection Rule provided a very clear and concise definition of both.” Fourth-generation Illinois farmer Eric Kelsey discussed what it was like to work with the Corps to complete a farm pond project. He later learned that the proj- ect was cited by the EPA as evidence in federal court as an example of how the Navigable Waters Protection Rule was

leading to environmental degradation. “My situation was being used in feder- al court as evidence over environmental degradation. This compelledme to tellmy story,” he said. “To me and many other farmers and small business owners in my area,” he continued, “this is a story not about envi- ronmental degradation at all, or harm. It is about a private landowner and a farmer who sought to realize the full use and en- joyment of my property. “And in doing so, I discovered that this

ByChristine Souza Farmers and ranchers are advocating for a federal “waters of the United States” ruleunder theCleanWaterAct that is clear andconciseandmaintainsexemptions for normal agricultural activities. Upon review of the previous Navigable Waters Protection Rule done during the Trump administration, the U.S. Environmental Protection Agency and U.S. Department of the Army officials de- termined that theTrump-era rule reduces cleanwater protections. Theagenciessaidthataproposedrulere- visionwouldrestoretheregulationsdefining WOTUSthatwereinplacefordecadesuntil 2015—with updates to be consistent with relevantU.S. SupremeCourt decisions. EPA and Department of the Army offi- cials heard from farmers and ranchers on the issue last week, during a roundtable discussionheldby theU.S. Small Business Administration, Office of Advocacy. Sylvia Quast, senior advisor to the as- sistant administrator for the EPA Office of Water, described the proposed rule as foundational fordevelopingadurabledefi- nitionof waters of theUnited States. “This is a systemof rules around this definition that people have been working with for literally decades, and our hope is that that will provide people certainty in terms of planning your operations,” she said. StefanieSmallhouse, anArizona ranch- er andpresident of the state FarmBureau, said “farmers and ranchers take steward- ship of the land and water very seriously and strive to manage resources in such a way that the next generationwill have the same opportunities that we have had.” Smallhouse said the 2015 rule “was overwhelmingly opposed by those of us in the agriculture community because it further expanded this footprint of the reg- ulation in interpreting what qualifies as waters of theUnited States.” She added that the 2015 rule created “a complexmatrixofqualifiers,whileweaken- ing the farmingandranchingexemptions.” In contrast, she said, the Navigable Waters Protection Rule under the Trump administration brought clarity to what qualified as WOTUS through “bright line rules, while maintaining much needed farming and ranching exemptions.” “Clear and consistent exclusions pro- vide regulatory certainty for farmers and ranchers given the potential for misappli- cation by agency staff and citizen plain- tiffs filing suit under the Clean Water Act citizen provision,” Smallhouse said. “Groundwater should continue to be ex- cluded from the text of the rule and farm ditches, canals, ponds andsimilar features should continue to be excluded from the definition ofWOTUS.” In discussing the need for clarity and consistency for farming exemptions, Smallhouse cited the Duarte Nursery v. U.S. Army Corps of Engineers case, in which California farmer JohnDuarte was accusedof federalwetlandsviolationsafter plowing a TehamaCountywheat field. He

settled the government’s CleanWater Act case against him in 2017. “We have seen cases in the last decade, suchas theDuarte case, whichhave taken thenormal farming and ranching exemp- tion and turned it on its head because the federal government essentially defined plowing as creatingmountains and ridges within an area that should have been ex-

See WOTUS, Page 8



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January 12, 2022 Ag Alert 3

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