The Trump administration has unveiled its final revisions to Clean Water Act rule-making, providing protections for waterways and wetlands — known as “waters of the U.S.,” or WOTUS. The Navigable Waters Protection Rule is intended to protect streams with perennial and intermittent flows and distinguish them from traditionally navigable waters.
This new rule is important to Western farmers and ranchers. It establishes a regulatory structure that moves in the direction of bringing clarity to CWA regulation by establishing what categories meet the definition under WOTUS.
The federal definition of WOTUS comes into play with a dredge-and-fill project or a wetland on irrigated agriculture, where a farmer, rancher or irrigation district manager might need an additional federal permit.
Just as importantly, the new rule explains what waters are not subject to federal control. Farmers and ranchers will certainly benefit from the new rule’s clarification that most ditches are not jurisdictional. Artificially irrigated areas — including fields flooded for agricultural production — are excluded, as is prior converted cropland. The same goes for off-stream water storage reservoirs and farm, irrigation and stock-water ponds. Groundwater and groundwater recharge, including infiltration basins and ponds, are also excluded. Wetlands in the uplands that were created by irrigation and that would dry up if irrigation were to cease are not jurisdictional under the CWA.
Some critics of the Trump administration’s move — with hefty support from many mainstream media sources — claim the proposed rule will remove millions of miles of streams and roughly half the country’s wetlands from federal protection, “the largest rollback of the Clean Water Act since the modern law was passed in 1972,” as characterized in a recent Politico article. Claims like these were addressed front and center by the Trump administration, which says there are no data or tools that can accurately map or quantify the scope of “waters of the United States.”
Challenge in the past
The Obama administration’s prior WOTUS rule also attempted to clarify administration of CWA jurisdictional issues. However, that rule — which is now replaced by the new Trump rule — was very uncertain, particularly in areas where Western farmers and ranchers store, move and apply water for irrigation. This uncertainty brings with it the risk of additional regulations; time-consuming, potentially expensive processes; expanded opportunities for litigation; and a shift from local and state water management toward increased federal agency regulation and oversight.
Today, more than a third of the 3.6 million stream-miles in this country are designated as “impaired” under the federal CWA. Under the federal Endangered Species Act, 28 types of salmon have been listed, and none have recovered. Though listing of waters as impaired, and species as endangered, might be perceived by some as victories, they have by and large not translated to real improvements to the species on the ground (or in the water).
The new federal rule is not an attempt to “gut” protections for our nation’s waterways. It simply clarifies and provides more certainty about when producers and water managers would need a federal Clean Water Act permit, and when they would not.
Keppen is executive director of the Family Farm Alliance.