Although a rule that revises which bodies of water are subject to Clean Water Act regulations has taken effect, the agricultural community continues to be concerned about how strict federal scrutiny will be.
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 connected to a previously jurisdictional waterway must now comply with the Clean Water Act, said LSU AgCenter economist Naveen Adusumilli. 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 was written to clarify a vague term in the act that caused uncertainty in interpretation of regulatory authority.
Both the Environmental Protection Agency and the U.S. Army Corps of Engineers jointly enforce the act, which applies to “waters of the U.S.,” which includes wetlands and navigable waterways used for commerce. The original definition is vague about whether regulations apply to seasonally flowing streams and waterways near regulated waters.
The Clean Water Rule brings waters in 100-year floodplains under jurisdiction. But those areas 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, any waterbody 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, Adusumilli said.
“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, he said. 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. But, determining physical, chemical and biological connectivity among waters could require extensive case-by-case analysis, which involves substantial time and money.
Olivia McClure is a graduate assistant with LSU AgCenter Communications.
(This article was published in the summer 2015 issue of Louisiana Agriculture Magazine.)