How could the Impending Repeal of the Federal Clean Water Rule affect American Farmers?
By Max Harleman
In July 2017, the Environmental Protection Agency (EPA) and Army Corps of Engineers took action to repeal the Obama-era Clean Water Rule, and last week they proposed a replacement rule, which is now open for public comment. The Natural Resources Defense Council said that repealing the rule would “strip out needed protections for the streams that feed drinking water sources for one in every three Americans,” and called it a “reckless attack on our waters and health.” Conversely, the American Farm Bureau Federation, an industry group, praised the move, saying that under the Obama-era rule “few, if any, waters would fall outside of federal control,” which creates “burdensome requirements and tremendous uncertainty for farmers and ranchers.” Some policymakers have supported the repeal under the premise that it protects farmers’ property rights. But is the repeal really a boon to farmers?
Answering the question requires an understanding of the Clean Water Rule, which the EPA and Army Corps of Engineers issued in 2015 under the authority of the Clean Water Act. The Act’s primary objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The Act has many mechanisms to achieve the objective, but at its core are two provisions which require individuals and companies to get permits to 1) discharge pollutants from point sources in navigable waterways, and 2) discharge dredge or fill material in navigable waterways. Individuals and companies that discharge without permits could face steep fines, and the EPA and Army Corps of Engineers’ policies determine whether a permit is issued for a given case. The main goal of the Clean Water Rule was to provide clarity about what counts as “navigable waterways,” which is ambiguously defined in the Act as “the waters of the United States, including the territorial seas.”
Over four decades of implementation and litigation of the Clean Water Act has not resulted in a clear definition of “the waters of the United States,” creating uncertainty about which bodies of water and land it covers. The Supreme Court held in 1985 that implementing agencies can require permits for water bodies that are “navigable in fact” (traversable by boat), or wetlands that “actually abut on” a waterway that is navigable in fact. But it remains ambiguous whether the agencies can require permits for wetlands that are near tributaries of navigable waterways, or are only intermittently saturated. The Clean Water Rule asserted jurisdiction over tributaries, wetlands, ponds, lakes, bays, and impoundments that “significantly affect the chemical, physical, or biological integrity” of navigable waters by performing various aquatic functions (such as sediment trapping or nutrient recycling).
The Clean Water Rule is in effect in 26 states (and not others due to pending decisions in federal district courts), but the Trump administration’s proposed replacement of the definition of “waters of the United States” entails a narrower jurisdiction. The replacement is based on a 2006 plurality opinion by Justice Scalia, which states that only “relatively permanent” bodies with “continuous surface connections” to navigable waters should fall under the definition.
The effect on farmers of “repealing and replacing” the Clean Water Rule depends on two questions: 1) Under the Clean Water Rule, how much agricultural property would be newly classified as “waters of the United States?” and 2) How would farmers’ activities be limited on the newly classified properties?
There is no clear answer to the first question. Several news organizations circulated an estimate that the rule would extend jurisdiction to sixty percent of the nation’s waters. But the EPA’s economic analysis indicated that the rule would only increase positive jurisdictional determinations by 2.8 to 4.7 percent (although the Trump administration’s newly proposed rule suggests that these figures faced criticism from public commenters). Only one thing is clear: the rule explicitly exempts various types of agricultural property, calling them “not waters of the United States.” They include prior converted cropland, storm and wastewater systems, artificially irrigated areas, artificial lakes and pools, irrigation and stock watering ponds, and water filled depressions created from construction.
To answer the second question, we must consider other exemptions contained in the rule and Act. “Normal farming, silviculture, and ranching activities” are explicitly exempt from dredge and fill permitting, and include plowing, seeding, cultivation, harvesting, and construction of farm roads and minor drainage systems. For newly classified property, farmers would be limited to discharges associated with these “normal” activities. For example, they could plow, seed, and harvest the property when it is dry, but would require a permit to drain or divert the flow of surface water to support crops or buildings.
The application of chemical fertilizer, pesticides, and herbicides does not classify as a “normal” activity, but the rule does not change requirements for applying them directly to farmland, which typically does not require a permit. Runoff of chemicals from farmland into water is a leading cause of surface water pollution. But because runoff does not constitute a point source under the Clean Water Act, permits would only be required for discharging chemicals directly into “waters of the United States.” This means that farmers would need to apply for permits to directly apply these chemicals to newly classified property.
Certainly, reduced opportunities brought about by new jurisdictional determinations would represent economic costs for farmers. But given low official estimates of increased jurisdictional determinations and the existing exemptions for agriculture, it is likely that these costs have been exaggerated by some industry groups and policymakers. Supporters of the rule remind us that it would create benefits, including reducing pollution in water used for drinking (and farming), protecting streams for recreation, and reducing the conversion of wetlands that perform critical ecosystem services.
The economic analysis that accompanied the Obama-era Clean Water Rule indicated that its benefits, calculated from estimates of households’ willingness to pay to preserve wetlands, outweighed its potential costs by as much as seven to one. The Trump administration’s rule includes its own analysis, which shows that repealing the Obama-era rule could create millions of dollars in additional net benefits, the exact amount of which depends on the degree to which states will step in to regulate newly non-jurisdictional waters. The new rule will now face 60 days of public comment, after which it is sure to face challenges from citizens and major environmental groups. To survive legal challenges, the administration will have to make a strong case that its definition of “the waters of the United States” is more reasonable than the previous administration’s definition.
Max Harleman is a PhD student at the University of Pittsburgh, Graduate School of Public and International Affairs. His research focuses on the governance of energy projects and their associated economic and environmental impacts on communities near development.
