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Definition of "Waters of the U.S."

Issue
The Clean Water Act (CWA), enacted in 1972, limits federal jurisdiction to “navigable” waters of the United States. The U.S. Supreme Court, in 2001 and 2007, reaffirmed those limits. The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps), through the publication of a new proposed rule, is seeking to expand its authority beyond the limits approved by Congress. Farm Bureau opposes proposals to fundamentally change the CWA by expanding jurisdiction of the federal government to intrastate waters, including groundwater, ditches, culverts, pipes, desert washes, sheet flow, erosional features, farm and stock ponds, and prior converted cropland.

Visit AFBF Ditch the Rule website

Background
Two Supreme Court decisions over the past decade have reaffirmed that “navigable waters” under the CWA does not extend to all waters. Legislation to overturn those decisions – despite aggressive lobbying campaigns by environmental groups – has failed to reach a vote on the floor of either the House or the Senate. That has happened primarily for two reasons. First, bipartisan leaders continue to strongly support the structure and goals of the CWA and do not want to see EPA intrude on traditional state prerogatives relating to land use planning and economic growth. Second, the legislation aggressively pushed by environmental groups would allow EPA to use the CWA to regulate activities even on dry land and even when those activities are not connected to interstate commerce. Such an over-reach goes well beyond anything contemplated by the framers of the 1972 law.

current-authority-new-authority-example-smIn April, the EPA and the Corps published a proposed rule which would greatly expand the agencies’ regulatory jurisdiction under the Clean Water Act. The new rule is supposed to clarify the proposed scope of the CWA, however, the “clarification” is achieved by categorically classifying most water features and even dry land as a “Water of the U.S.” This broad expansion means that under the rule the EPA and the Corps could regulate any or all waters found within a state, no matter how small or seemingly unconnected to a federal interest.

Graphic illustrates increase in
federal authority under new rule.
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printable size.

The stated exemptions are very narrow and only apply to one part of the CWA, the section 404 “dredge and fill” permit program. The rule provides no protection from enforcement over other activities, such as weed control, fertilizer applications and any number of other common farm activities that may trigger CWA liability and permit requirements. In addition, a farmer must have been farming continuously since 1977 to benefit from the exemptions. Second, the rule narrows existing exemptions by tying them to mandatory compliance with what used to be voluntary Natural Resources Conservation Service (NRCS) standards. Farmers previously could undertake these practices as part of their normal farming activities; now, those activities must comply with NRCS standards or else the farmer risks CWA enforcement. Finally, because these exemptions are not part of the rule but, rather, included in an interpretive rule that is more like agency guidance, EPA and NRCS could narrow them further at any time.

Act Now

Farm Bureau supports a rulemaking that clearly identifies the limits of federal CWA jurisdiction articulated by the U.S. Supreme Court in SWANCC and Rapanos. The Supreme Court rejected the notion that CWA jurisdiction extends to waters with “any” connection to navigable waters (no matter how tenuous) and rejected the agencies’ “land is waters” approach. Any proposed rule must acknowledge that not all water bodies are subject to CWA jurisdiction and provide specific examples of features that are not within the scope of CWA regulation.

Legislative Request
Farm Bureau believes federal CWA authority should be limited to navigable streams and flowing waterways that have continuous flow.

In light of these significant legal, economic, and scientific deficiencies with the proposed rule and its supporting documentation, Farm Bureau believes that EPA and the Corps should voluntarily withdraw the rule and asks Members of Congress to help farmers convince these regulatory agencies to “Ditch the Rule.”

Updated August 2014

 

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