Tom Hall, Senior Agronomist, Rooster Strategic Solutions

The 1972 Clean Water Act (CWA) established the basic structure for regulating the discharge of pollutants into the waters of the United States (WOTUS). Its administrative rules have been rewritten twice by the Obama and Trump administrations; now there is to be a third revision by the Biden administration. Why? Because the law as it was originally written said it would ensure that navigable waters were suitable for drinking and recreation. What Congress meant by ‘navigable’ has been the basis for multiple lower and supreme court rulings as well as the two previous rules revisions and the upcoming third review.

Who is regulated by the Clean Water Act? 

Any point source, such as a factory, sewage plant, or processing plant that discharges into a water of the United States must have a permit issued by the Environmental Protection Agency (EPA) or by a state. Runoff from crop farming, which is considered a non-point source, is not currently regulated under the Clean Water Act. Large livestock farms defined as over 1000 animal units are regulated under the CWA through the Concentrated Animal Feeding Operation (CAFO) provisions. States have the authority to regulate a smaller number of animals if they determine the operation is discharging into U.S. waters. The CWA also regulates landowners proposing to develop or alter a wetland area larger than a half-acre.

What was in the Trump Rule changes?

The Trump rule, called the Navigable Waters Protection Rule, defined ‘navigable’ as waters that are hydrologically connected throughout the year.  Thus, streams, lakes, rivers, and associated wetlands basically had to have water flowing year-round before they could be subject to CWA regulation. Streams and wetlands that were dry for any part of the year were not regulated.

Why is the Trump Rule being reviewed?

The Navigable Waters Protection Rule was dubbed by environmental groups “the dirty water rule” and was immediately challenged in the U.S. District Court by a coalition led by the National Resources Defense Council (NRDC). Reversing this rule has been a stated priority for many environmental groups, including the NRDC. The Biden administration said this week that a new rule is necessary because the Trump rule was not adequately protecting U.S. waters. They claim that there are over 300 projects operating today without oversight that would have required a permit under the 2015 rules.

How might the Biden administration revise the WOTUS rule?

EPA Administrator Michael Regan from North Carolina, whose father was an ag extension agent, has proven to be a good listener who understands agriculture. According to a recent announcement, Regan wants to revise the rule and is looking for middle ground between the Obama and Trump administration’s changes. Regan said he wants a new rule that is durable, consistent with previous court decisions, and informed by lessons learned from previous rule making. He also committed to hold public meetings around the country this summer and fall. Regan’s supporters believe he can oversee the development of a rule that fairly protects both the waters of the United States and the rights of the landowners. However, there is general agreement that Regan has a huge challenge in finding any common ground among the varied WOTUS stakeholders. Environmental groups such as the NRDC are pushing the Biden administration to make major structural changes, if not reversing the Trump rule altogether, calling the Trump changes “… a full-scale attack on our water protections.” If this happens, regulators and landowners may lose the clarity of the Trump rule, which simplified when and where a permit was needed. A new rule could also significantly expand the waters covered by the permitting process.

What is the potential impact for farmers and ranchers?

The impact of new rules on grain farmers is negligible but the impact on large livestock operations – particularly in the western U.S. – could be huge. The Trump rule excluded intermittent streams from needing a discharge permit.  Livestock operations under the new rule in a watershed with intermittent streams, which is quite common in the west, can potentially be brought into the CAFO program.

Over the next two years the new rule-making process will have the full attention of business, agriculture, and environmental organizations. And I wouldn’t be surprised if Congress steps in about two years from now to finally bring clarity to the almost 40 years of chaos around what exactly is a water of the United States.