A rule that revises which bodies of water are subject to Clean Water Act regulations will take effect this month, which has some farmers worried they will come under stricter federal scrutiny.
Agricultural water has always been exempt from Clean Water Act regulations, but the new Clean Water Rule incorporates several types of water that were never regulated before and are common on farms. Tributaries and waterways adjacent or connect to a previously jurisdictional waterway must now comply with the Clean Water Act, said Naveen Adusumilli, LSU AgCenter economist.
Drainage ditches and irrigation runoff, for example, are not specifically regulated by the act but drain into those that are.
“Can farmers dig a ditch now, and how will it be regulated? It is unclear right now,” Adusumilli said.
The changes are spelled out in the Clean Water Rule, which will be implemented on Aug. 28 and was written to clarify a vague term in the act that caused uncertainty in interpretation of the EPA and Army Corps of Engineers’ regulatory authority.
The two agencies jointly enforce the act, which applies to “waters of the U.S.” -- wetlands and navigable waterways that are used for commerce. The original definition is vague about whether regulations apply to seasonally flowing streams and waterways that are near regulated waters, and much of that confusion remains.
The Clean Water Rule brings land in 100-year floodplains under jurisdiction. But those lands are dry most of the time, Adusumilli said, so it is unclear when exactly they would be subject to Clean Water Act standards.
Under the new rule, a waterway with a “significant nexus” to a navigable waterway is also jurisdictional. The nexus is considered significant if the waterway performs any of nine functions, including trapping sediments or nutrients.
“There’s a lot of uncertainty with some of those definitions,” Adusumilli said. “How do farmers identify if those functions are there? Who’s going to help? At this time, we don’t know who the final authority will be to assess those situations.”
Though the rule has been finalized, the EPA and Corps must now determine how to enforce it. Meanwhile, attorneys general from 27 states are challenging the rule in a lawsuit.
EPA officials have said their agency will not regulate agriculture activities or expand its authority to waters not already under its jurisdiction. They maintain that exemptions made for agriculture in the Clean Water Act, such as waiving Section 404 permit requirements for farms, ranches and forestry operations, will continue.