Water securityWhy farmers and ranchers think the EPA Clean Water Rule goes too far

By Reagan Waskom and David J. Cooper

Published 6 March 2017

President Trump issued an executive order 28 February directing federal agencies to revise the Clean Water Rule, a major regulation published by the Environmental Protection Agency and the Army Corps of Engineers in 2015. Framers and ranchers are particularly worried that the Clean Water Rule could expand federal regulations that impact their private property rights. However, regulatory agencies and the regulated community need to know the limits of the Clean Water Act’s reach so they can take appropriate measures to protect water resources. If the rule is scrapped, we still will need to know which water bodies require protection under the law. If the Trump administration withdraws or weakens the Clean Water Rule, it is likely to leave regulators interpreting case by case whether tributaries and adjacent waters are covered, as they have been doing since 2006, and land and water owners guessing about what they can do with their resources. So in the end, repealing the rule won’t answer the underlying question: how far upstream federal protection extends.

President Trump issued an executive order 28 February directing federal agencies to revise the Clean Water Rule, a major regulation published by the Environmental Protection Agency and the Army Corps of Engineers in 2015. The rule’s purpose is to clarify which water bodies and wetlands are federally protected under the Clean Water Act.

EPA Administrator Scott Pruitt led a multi-state lawsuit against the rule as Oklahoma attorney general, and has called it “the greatest blow to private property rights the modern era has seen.”

At the Colorado Water Institute at Colorado State University, we work in partnership with the farm and ranch community to find solutions to difficult western water problems. Farmers and ranchers often express frustration with one-size-fits-all worker protection, food safety, animal welfare, immigration, endangered species and environmental regulations. So we understand their concern that this rule may further constrain agricultural activities on their land.

In particular, they fear the Clean Water Rule could expand federal regulations that impact their private property rights. However, regulatory agencies and the regulated community need to know the limits of the Clean Water Act’s reach so they can take appropriate measures to protect water resources. If the rule is scrapped, we still will need to know which water bodies require protection under the law.

Which waters?
The Clean Water Act of 1972 protects the “waters of the United States” from unpermitted discharges that may harm water quality for humans and aquatic life. However, it leaves it up to EPA and the Army Corps of Engineers to define which waters the law covers.

Agencies and the courts agree that this term includes “navigable waters,” such as rivers and lakes. It also covers waterways connected to them, such as marshes and wetlands. The central question is how closely connected a water body must be to navigable waters to fall under federal jurisdiction.

In 2001 and 2006, the Supreme Court handed down rulings that narrowed the definition of protected waters, but used confusing language. These opinions created regulatory uncertainty for farmers, ranchers and developers.