PARTNERS

By Vicky Boyd 

Farm ditches and drains, such as this one pictured near Farmington, are not expected to be classified as wetlands under the pending WOTUS recodification.
Photo by Vicky Boyd

 

After a 14-year fight to bring common sense to a portion of the Clean Water Act, the Trump administration’s plan will overturn the government regulatory exceedance.

“It’s beginning to put light at the end of the tunnel – the light’s going to get brighter,” said Clement-area winegrape grower Brad Goehring, also a San Joaquin Farm Bureau board member.

SJFB Executive Director Bruce Blodgett said rewriting WOTUS will remove rules and regulations that would have affected about 97% of San Joaquin County’s land.

“What was also troubling with that particular rule was the environmental groups would have had the ability to file drive-by lawsuits,” he said of the Obama-era definition. “If they thought they saw something, they could file suit. You were basically guilty until proven innocent.

“They could get a huge settlement and move onto the next landowner,” Blodgett said.  ‘The other major concern with that rule is it criminalized ag operations.”

Administration keeps promise

Environmental Protection Agency Administrator Andrew Wheeler and Department of the Army Assistant Secretary R.D. James in mid-September announced the agencies would repeal the 2015 rule that significantly expanded the definition of WOTUS under the Clean Water Act. In its place, the agencies plan to recodify that portion. Essentially, it would limit Waters of the U.S. to those that are physically connected to or directly abutting historic navigable waters.

It also would define what waters would not fall under Clean Water Act jurisdiction. Among those are ephemeral features that contain water only during rainfall, groundwater, many ditches including those on farms and along roadsides, and prior converted cropland.

The announcement makes good on a promise Donald Trump made during his presidential campaign to repeal and rewrite WOTUS.

American Farm Bureau President Zippy Duval praised the latest efforts, calling the 2015 rule unreasonable and unworkable.

“No regulation is perfect, and no rule can accommodate every concern, but the 2015 rule was especially egregious,” he said in a statement. “We are relieved to put it behind us. We are now working to ensure a fair and reasonable substitute that protects our water and our ability to work and care for the land.”

U.S. Agriculture Secretary Sonny Perdue called repealing WOTUS a “major win for American agriculture.”

“The extreme overreach from the past administration had government taking the productivity of the land people had worked for years,” Perdue said in a statement. “Farmers and ranchers are exceptional stewards of the land, taking great care to preserve it for generations to come.”

What’s next?

Legal challenges by 28 state attorney generals to the Obama WOTUS rule resulted in injunctions in 2018. Since then, those states had been operating under a wetlands definition used before 1987, which Goehring said “was nowhere as bad as the Obama rule but still had a few problems.” The other 22 states, including California, continued to operate under the Obama-era rule.

The biggest difference with the new Trump rule will be in how the agencies define wetlands, Goehring said. “There are some similarities as they protect ag. There’s a long-standing federal exemption for ag, so we need to make sure it isn’t going to adversely affect ag due to the definition change.”

Under earlier WOTUS definitions, prior converted farmland and normal farming practices were supposedly not regulated. But several regional Army Corps of Engineers offices interpreted the exemptions differently, putting some farmers in their crosshairs.

Another pending change that bears watching is how the new rule defines normal farming practices, Blodgett said. The pre-1987 rule exempted more than 50 practices but not others.

“We need to make sure it recognizes all farming practices,” he said. “It seems like the agencies were confused about what practices applied.”

The final Trump rule is expected to be published in the Federal Register between now and January 2020. Goehring said he expects lawsuits will be filed, likely putting it on hold.

“Groups are going to try to get an injunction against it, which is what kind of happened with the Obama rule, but we have a strong Supreme Court in place now,” he said. “It’s going to have to take its time to get there. It’s just part of the process, unfortunately, and we know it’s going to happen.”