U.S. EPA attempts to regulate nearly all U.S. waters in new proposed rule

A proposed EPA rule would bring nearly all waters under federal jurisdiction, expanding the scope of the Clean Water Act to include even non-navigable waters and potentially making it necessary for farmers and ranchers to get permits for everyday activities like field work or fencing.

Scott VanderWal, President of the South Dakota Farm Bureau and third-generation farmer from Volga, S.D., is concerned about what this might mean for his family’s farm.

“The Clean Water Act passed by Congress in 1972 says that only ‘navigable’ waters are under federal jurisdiction, but this new proposed rule would effectively eliminate those constraints, and on our farm that could mean that stock ponds, dry creek beds, and even ditches are regulated,” VanderWal says. “Is a road ditch ‘navigable’ when there is only a little water in it after a big rain or during a day or two in the spring when the snow is melting? It shouldn’t be, but EPA wants to use the Clean Water Act to regulate everything that happens next to areas that don’t even have continuous water flow. It simply doesn’t make sense.”

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published this “Waters of the U.S.” rule in the federal register on April 21 and is accepting comments from stakeholders now through July 21.

For the first time ever, this proposed rule specifically defines ditches as “jurisdictional tributaries” under all Clean Water Act programs. This would include road-side ditches, irrigation ditches, and stormwater ditches.

“Farmers and ranchers should be very concerned because of the hugely expanded scope of regulation, not to mention how EPA is clearly sidestepping Congressional intent,” says Wayne Smith, Executive Director of the South Dakota Farm Bureau. “EPA is attempting to regulate nearly all waters, even ones that aren’t wet most of the time.”

Normal farming and conservation activities have always been exempt under Congress’ Clean Water Act, and permits have not been required. However, this rule would now require farmers and ranchers along anything EPA considers “Waters of the U.S.” to meet “voluntary” Natural Resources Conservation Service standards, or else they will face Clean Water Act liability.

“EPA is trying to make voluntary regulations required, even along non-navigable waterways. If farmland is now regulated as ‘waters,’ farming and ranching will be difficult if not impossible in some areas,” Smith added.

“Farmers care a great deal about water quality. My family drinks the same water that is found on our farmland, and it waters our crops and livestock. But it is simply not workable to require farmers to get Clean Water Act permits to do normal things like spread fertilizer, plant trees, or build fences along areas like ditches that may or may not have water in them,” VanderWal added.