What Do Farmers Actually Get from the New WOTUS Rule?

by Dave Owen

January 23, 2020

Originally published on Environmental Law Prof Blog. Reprinted with permission.

This morning, the U.S. Army Corps of Engineers and EPA released a final rule determining which aquatic features are covered by the Clean Water Act. Already, the press coverage is following a familiar pattern: farming lobbyists praise the rule as a major victory, and environmentalists condemn it as an abdication of clean water protection and water quality science. The former part of that pattern has always been interesting to me. It's true that the farm lobby has been a prominent and effective participant in debates about this rule and its predecessors. But I think much of its participation, and the resulting press coverage, has been misleading. This new rule does offer benefits to farmers (at a likely cost to water quality), but the benefits aren't likely to be nearly as great as the rhetoric would lead you to believe. The goal of this post is to explain the changes the new rule actually makes for farmers and the reason those changes are more modest than you might expect.

To start, it's helpful to understand the relationship between farming and the Clean Water Act prior to this rule. Several key exemptions limited the act's effects on farmers. First, the act's most important regulatory programs affect only point sources of water pollutants, and the act specifically excludes agricultural stormwater runoff and irrigation return flows from the definition of "point sources." Not all agricultural activity is excluded from that definition; concentrated animal feeding operations, for example, can be point sources. But most agricultural activity is uncovered.

Agricultural activity can be covered, and can require permitting under Clean Water Act Section 404, when it requires filling in aquatic features like streams or wetlands. The scope of those protections on filling activities is centrally at issue in today's rule. But for years, EPA and the U.S. Army Corps of Engineers have not treated "prior converted cropland" – that is, cultivated areas that were converted to wetlands in the past – as Clean-Water-Act-covered aquatic features. That exemption has been part of Clean Water Act regulations since 1993, and it was explicit in the 2015 regulations that the Trump administration criticized and then repealed. Thousands of acres of aquatic features are affected by that exception. It also explains why a common image appearing in Farm Bureau advocacy materials – a flooded cornfield, usually accompanied by statements implying that the farmer faces legal liability – is misleading. Unless that cornfield was just recently undeveloped land with a natural stream, the farmer's plowing of the field was clearly legal.

Finally, it's important to realize that under a 2001 Supreme Court decision, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, isolated wetlands were not covered. An isolated wetland, under the 2015 regulations, was a wetland whose protection lacked a "significant nexus" to water quality in traditionally navigable waterways. That case and the resulting regulations meant that many hydrologically disconnected wetlands could be filled, even if they were not on prior converted cropland.

Consequently, even before this new rule, farmers could continue farming lands that once were streams or wetlands, even if those lands continued to flood. They also could continue to discharge large amounts of pollutants into wetlands, streams, lakes, and rivers. And they could establish new farming operations in areas where wetlands or streams presently existed if removing those wetlands or streams would not have a "significant nexus" to water quality in traditionally navigable waterways. They also could also fill streams and wetlands that did have regulatory protection; they just needed permits (which do take time and money to obtain and come with strings attached) in order to do so.

So what does the new rule actually change? It will matter primarily in two circumstances. First, it will give farmers more ability to cultivate new areas (without first obtaining permits), even if those areas contain wetlands that are not directly connected to surface waterways or if those areas contain ephemeral streams. Some of those disconnected wetlands and ephemeral streams would have received protection under the 2015 rule, and under prior rules dating back several decades; now they will not. Second, it will give agricultural activities that were traditionally regulated (for example, concentrated animal feeding operations) more ability to discharge waste directly into disconnected wetlands and ephemeral streams. Those are meaningful changes. But it is hard to see how they offer major benefits to farmers. The vast majority of farmers is likely to be completely unaffected.

So why was this such a priority for the Farm Bureau, and why will there be so much celebration? Here the post turns speculative; I am not privy to the Farm Bureau's strategic calculations. But I suspect one reason is that this issue has been very effective for rallying the organization's membership. The Farm Bureau, like other advocacy organizations, needs members, and it needs those members to pay their dues. It's easy for any advocacy organization to sustain that interest in support if it provides issues around which members can rally. And often identifying those issues is more a process of finding a compelling, appealing narrative than it is about factually and carefully identifying opportunities to advance members' interests. I suspect that's what's going on here. "Obama and EPA are coming to regulate you out of business, and our dues-supported advocacy is all that protects you" is a compelling narrative. "This change won't affect you one bit unless you're looking to expand your farm into undeveloped land that has ephemeral streams on it" is more accurate, but it's not nearly so exciting.

A second reason is forward-looking. I suspect the Farm Bureau flexed its muscles here just to make sure anyone who actually does contemplate more extensive water-quality-based regulation of farming thinks twice about taking that step.

So if you're a reporter covering this rule, you might think twice about leading with a quote from the Farm Bureau. A mining company, an oil company, or a developer might be a better place to start.

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Dave Owen is a Professor of Law at the University of California, Hastings, College of the Law.

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