EPA and Corps Final Clean Water Rule’s Potential Impacts on Farming

The EPA and Army Corps of Engineers recently published a final rule to clarity the definition of “waters of the United States” under the Clean Water Act (CWA). Why is this important for farming?  There are rules within this act that require an EPA permit for all discharges of pollutants to “waters of the United States” and the act defines pollutant very broadly.

The law firm Dorsey & Whitney LLP recently released this article that discusses this topic in good detail:  EPA Ruling.

Here are some pieces of the article that focus on farming specifically:

In response to farmers’ concerns, EPA expressly excluded artificially irrigated areas, farm and stock watering ponds, and irrigation ponds from CWA jurisdiction. EPA also excluded from CWA jurisdiction those ditches with ephemeral or intermittent flow—that is, ditches that carry water only when it rains. To fall within the rule, a ditch must have the physical features of flowing water. Specifically, the ditch must have a bed and banks, as well as an ordinary high water mark. Moreover, the ditch must contribute flow directly or indirectly through another waterway to a traditional navigable water, an interstate water, or the territorial seas. However, the rule covers ditches constructed out of or functioning as streams, as well as ditches that drain wetlands or are able to carry pollutants downstream.

Farmers may take some comfort that the rule continues exemptions for activities such as planting, harvesting, and moving livestock across a stream. The rule also exempts agricultural storm water discharges and return flows from irrigated agriculture. But the rule still requires a case-by-case determination of what constitutes a “water of the United States.” Only time will tell whether EPA and the Corps have achieved the goal of clarifying the definition of “waters of the United States” while protecting agricultural and other business interests.

Special thanks to David Enquist of our Moses Lake office for this post.