By Vicky Boyd

With the Environmental Protection Agency and Army Corps of Engineers recently releasing a draft Clean Water Rule, San Joaquin County winegrape grower Brad Goehring can finally breathe a sigh of relief.

For the past 14 years, he has immersed himself in getting common sense restored to the Clean Water Act and particularly the portion that defines "Waters of the United States."

"Overall, it's just an excellent document," said Goehring, who was about 60 percent through studying the proposed rule changes. "It's not perfect, but it's as close to perfect as we could hope. It's way closer to what we've been, even under the Bush administration. And it's a million times closer than the Obama administration. I've never felt this good about it – I just wished it was a legislative fix rather than a presidential order."

A rule enacted by presidential executive order is fairly easy to change should the next administration not like the wording, as the Trump administration is currently undertaking. Enacting new legislation to change an existing law is much more difficult, he said.

Based on what Goehring had read so far, he said it appeared the proposal returns constitutional protection to private property rights.

"We should be able to farm like we were able to farm before," he said.

Goehring was personally touched by the issue more than a decade ago when the Army Corps of Engineers issued him a cease-and-decision order for allegedly filling wetlands. Goehring said he was just doing routine disking on his family vineyard.

Paul Sanguinetti, an SJFB board member who farms near Stockton, said he also was hopeful the proposed rule would return navigable waterways to what they should be. Although he hadn't had time yet to read the document, he said, "It's got to be better than what we've had. Maybe they'll have some better clarification."

He said the Clean Water Act had a place when it was enacted in the 1970s to clean up water pollution. But over the years, the federal government had expanded its reach to where it was "regulating everything we did, even the irrigation ditches," said Sanguinetti, also California Farm Bureau District 12 director.

SJFB Executive Director Bruce Blodgett hadn't yet had a chance to review the document either, but he said he expected Farm Bureau would submit comments during the 60-day comment period.

From what he heard, he said the proposal reduces federal over-reach on waters of the U.S. as Farm Bureau has advocated all along. What concerns him is California regulators stepping in.

"We still have the overlying problem that the state could take this over," he said. "If they did, 97 percent of the county could be ‘Waters of California' and would fall under new regulations."

Blodgett was referring to a CFBF analysis conducted a few years that found about 97 percent of San Joaquin fell under the revised 2015 definition of Waters of the U.S.

He said SJFB would have to stay on top of the issue and work with local legislators to ensure California doesn't expand protection of supposed wetlands.

A ‘straight-forward' proposal
Under what the Environmental Protection Agency and Army Corps leaders called a "straight-forward" proposal released Dec. 11, only six categories of waterways would be regulated. They are traditional navigable waters, interstate waters, tributaries to those waters, certain ditches, and certain lakes and ponds.

More than 200 years ago, the Department of Commerce established a definition for navigable waterways that has withstood legal tests of time.

Since the Clean Water Act was amended in 1972, Goehring said, the EPA and Corps had broadened what could be considered navigable far beyond what the nation's forefathers had envisioned.

Under the proposed WOTUS revisions, year-round waterways would fall under federal protection as would wetlands along the banks of those protected rivers and lakes or that have a direct hydrologic connection to those waterways. The draft also details what are not "Waters of the United States" and would not be federally regulated. They include features that only contain water during or in response to rainfall, such as vernal pools; groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; stormwater-control features; and waste treatment systems.

The proposed revisions still allow states and tribes to enact their own protection measures for water bodies and wetlands within their borders.

"What we always remember is the Constitution limits federal authority, and once you have reached those limits, then it's the states' responsibility," Goehring said. "It's not like there are no laws. WOTUS won't trample on states' rights and have federal rule of everything."

Another proposed change involves the word "adjacent" when describing wetlands near navigable waterways. In its place, the EPA has put "abut," which Goehring has suggested for the past 14 years.

Meaning contiguous, abut removes much of the ambiguity from the rule, he said.

The agencies also would change how they treat prior converted cropland under the proposal.

"If the land was abandoned and reverted back to wetland, it could be considered jurisdictional," Goehring said. "If it stays upland and doesn't revert back in any way, then you will be safe in the prior converted cropland clause."

Droughts and floods also are recognized in the proposed revisions, he said.

"If you abandon or fallow your land for five years and it's remained as upland, there's also no more jurisdiction," he said. "Flood waters aren't going to be used against you either, so they have things in place that were very reasonable in terms of determination of a normal weather cycle."

Another change is grazing and haying are now considered farming activities and would fall under prior converted cropland. This might come into play if someone with those crops wanted to replace them with row or permanent crops.

If adopted as written, the proposed rule would roll back the contentious and far-reaching WOTUS definition put in place by the Obama administration in 2015.

Shortly thereafter, legal challenges to WOTUS prompted on-again, off-again injunctions. In the latest round, California was one of 26 states left unprotected by a legal stay.

Once published in the Federal Register, the proposed rule – identified as Docket No. EPA-HQ-OW-2018-0149 – will undergo a 60-day public comment period.

How we got here
EPA and the Army Corps considered more than 6,000 comments and recommendations when developing the proposed revisions, according to the EPA news release. The revisions also make good on a promise President Trump made during his campaign, when he vowed to roll back a “horrible, horrible rule.”

If adopted as written, the proposed rule would roll back the contentious and far-reaching WOTUS definition put in place by the Obama administration in 2015.Shortly thereafter, legal challenges to WOTUS prompted on-again, off-again injunctions. In the latest round, California was one of 26 states left unprotected by a legal stay.Once published in the Federal Register, the proposed rule –identified as Docket No. EPA-HQ-OW-2018-0149–will undergo a 60-day public comment period.