By Mark Ryan & Betsy Southerland
January 24, 2020 at 5:00 am ET
The Trump administration replaced the 2015 Clean Water Rule with a new definition of what waters and wetlands are protected under the federal Clean Water Act. Many farmers supported Trump’s move, including Jamie Tiralla, whose op-ed, “Farm Local. Eat Local. Regulate Local.,” was published by Morning Consult last week. Tiralla called for a replacement rule that would strike the right balance between federal and local regulation of waters and wetlands.
We have the greatest respect for all the farmers and ranchers who produce the food, fuel and fiber needed by our country and the world, and we are certain that Tiralla believes what she wrote. Her views, however, and those of many farmers are based on misunderstandings of the 2015 rule that the Trump administration is replacing. Contrary to statements by the Farm Bureau and other agriculture lobby groups, the 2015 rule was not bad for farmers.
First, the CWA exempts most farm activities from regulation. Runoff from farm fields requires no permits, nor does tilling prior-converted croplands (wetlands turned to croplands before 1972).
The CWA requires permits only for runoff from large feedlots, applying pesticides directly into or on the banks of waters of the United States, or when filling wetlands that weren’t converted prior to 1972. Otherwise, farmers get a free pass — unlike, say, developers.
In response to farmers’ concerns, in 2015, the Environmental Protection Agency expanded agricultural exemptions to include ditches that fill only when it rains and most ditches constructed in uplands. The 2015 rule specifically exempted puddles from coverage, as well as artificial lakes or ponds constructed on dry land and used for rice growing, stock watering, aesthetics or irrigation.
Many farmers believe the federal government should enforce the CWA on bays and lakes but maintain that state and local governments should regulate “land that is sometimes wet and areas with small bodies of water.” The problem with this is that water runs downhill. Failure to regulate at the local level means more pollution and flooding downstream.
The Trump administration took this position when it proposed exempting at least 1.35 million miles of streams and 40 million acres of wetlands from CWA protection. The new Trump administration rule would have a particularly dramatic effect on arid parts of the country, removing CWA protection from over 80 percent of waters in those areas. The EPA claims no harm would be done because the states will protect these uncovered waters and wetlands.
The states were in charge prior to the passage of the CWA in 1972, and it didn’t work. States today will find it very challenging to provide substitute protection.
First, 36 states have adopted laws that prohibit or constrain state authority to take actions beyond those required by federal law. Second, 30 states have no program for regulating the excavation and filling of streams and wetlands and are completely dependent on the federal government regulating those actions.
To counter the agricultural lobby’s disinformation campaign about the 2015 rule, the EPA held over 400 meetings throughout the country and visited farms in nine different states to assure farmers face-to-face that ponds, puddles and many ditches were not covered by the rule. The EPA also documented that the vast majority of the 248,688 federal permits issued over a five-year period to fill wetlands, steams and shorelines were given to builders, oil and gas drillers, and miners, not to farmers. Because farmers are mostly exempt from the CWA, they need few permits.
Despite all this outreach, the repeal of the 2015 Clean Water Rule is perceived by many farmers and ranchers as a great benefit to them. The real beneficiaries are builders, oil and gas drillers and pipeline companies. They will now have a much freer hand in filling streams and wetlands.
The Trump replacement rule will remove CWA protections from a significant portion of streams and wetlands in this country, resulting in the impairment of drinking water, fisheries and flood control for communities throughout the United States. State and local governments can try to compensate by spending more money to treat their drinking water and flood-proof their rivers, but they will not be able to replace their streams and wetlands which, once filled or drained, will be lost forever.
Mark Ryan served as an assistant regional counsel for EPA Region 10 and special assistant U.S. attorney at the Department of Justice, and he was an author of the 2015 Clean Water Rule.
Betsy Southerland is the former director of science and technology in the EPA Office of Water.
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