January 23, 2019
The government shutdown this year has caused numerous complications at federal agencies with responsibilities in the Western U.S. Work on nonemergency regulations stopped in departments and agencies without funding. The government shutdown created new obstacles for agencies like the Environmental Protection Agency, which has been working on rolling back the Obama-era Clean Water Act (CWA) jurisdiction rule.
EPA and the Army Corps of Engineers postponed a January public hearing on the proposed new “Waters of the U.S.” definition until after appropriations have passed to fund the EPA. Publication of the proposed rule in the Federal Register was also postponed. EPA and the Corps a month earlier signed a proposed rule intended to provide a clear, understandable, and implementable definition of WOTUS that clarifies federal authority under the CWA.
At the Family Farm Alliance, we support the proposed actions to repeal and replace the 2015 Clean Water Rule, which we viewed as a jurisdictional expansion that would create additional bureaucratic red tape. The 2015 Obama rule also impedes Western producers’ ability to manage the delivery and use of water to grow food and fiber for the world. Despite these concerns, we worked constructively with the EPA during the Obama administration to ensure that, regardless of what happens with the various court proceedings, assurances will remain that allow for construction and maintenance of irrigation ditches and the maintenance of drainage ditches.
We’ve also worked closely with the EPA during the Trump administration to advance these concerns as well. Of critical importance to Western water users, irrigation and roadside ditches will be excluded under the new WOTUS definition, unless they are specifically included in a few narrow circumstances.
The term “prior converted cropland” — a longstanding exclusion for certain agricultural areas — would also be continued under the proposal. The agencies clarify that this exclusion would cease to apply when cropland is abandoned (i.e., not used for, or in support of, agricultural purposes in the immediately preceding five years) and has reverted to wetlands. “Agricultural purposes” include land use that makes the production of an agricultural product possible, including, but not limited to, grazing and haying. This proposed rule also clarifies that cropland that is left idle or fallow remains in agricultural use, and therefore maintains the prior converted cropland exclusion.
On the ground, the Obama-era WOTUS rule is currently in effect for 22 states. The other 28 are subject to the rules and guidance that were in place prior to that standard being enacted. The EPA and Army Corps of Engineers say they recognize the uncertainty the court rulings have created, and EPA has publicly stated, “Implementation issues that arise are being handled on a case-by-case basis.”
At the Family Farm Alliance, we are in the process of reviewing the proposed rule and will prepare written comments for EPA and the Corps. We want to confirm that assurances will remain that allow for construction and maintenance of irrigation and drainage ditches. And we will continue to push for clear and concise direction on the agriculture exemptions provided under the act.
Keppen is executive director of the Family Farm Alliance.
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