The Facts About the Clean Water Rule and Agriculture

Farmers, ranchers, and foresters depend on clean water for their operations—so as EPA and the Army developed the Clean Water Rule, we listened carefully to concerns from the agricultural community. The agencies’ priority was not only to protect clean water while making sure we didn’t negatively impact agricultural operations, but also to find ways to help.

For more than a decade, producers have faced uncertainty about which waters were covered under the Clean Water Act, and which ones weren’t. Producers don’t need regulatory uncertainty that makes their work more difficult.

That’s why the rule we finalized last month reduces red tape and provides more certainty when it comes to coverage of the Clean Water Act. Instead of confusion and case-by-case determinations about which waters are covered, the rule sets physical, measurable boundaries for the first time about where Clean Water Act coverage begins and ends. The rule does not expand the waters covered—in fact, it will actually reduce the scope of waters protected by the Clean Water Act compared to the 1970’s, 80’s, and 90’s.

We want to make sure our nation’s original conservationists have the facts about the new Clean Water Rule, so they can judge how effectively we addressed their concerns.

Checking the Facts in the Rule

The Clean Water Act makes it illegal to pollute or destroy a covered water without a permit. If you’re not doing either of those things, you don’t need a permit. Also, many agricultural activities have long been exempted from permitting requirements. Our rule doesn’t change those exemptions — in fact, it expands exclusions for farming, ranching, and forestry.

The rule does not regulate most ditches. It excludes farm and stock ponds, and grassed waterways and does not regulate groundwater, shallow subsurface flows, or tile drains. It does not make changes to current policies on irrigation or water transfers or apply to erosion in a field. The Clean Water Rule does not regulate land use or affect private property rights. These statements are directly supported by the text of the rule and its preamble, as found in this fact check document.

Input from Agriculture Shaped the Rule

In developing the rule, EPA and the Army heard consistently from the agriculture community, the U.S. Department of Agriculture, and state Departments of Agriculture. The message was clear that farmers, ranchers, and foresters are concerned about how regulations to protect clean water can interfere with their operations. They want to be treated as partners in efforts to conserve the nation’s critical water resources.

After releasing the proposed rule last year, the agencies held more than 400 meetings with stakeholders across the country to provide information, hear concerns, and answer questions. EPA officials visited farms in Arizona, Colorado, Maryland, Mississippi, Missouri, New York, Pennsylvania, Texas, and Vermont. Feedback from the agricultural community led to several improvements in the final Clean Water RuleLearn more in this blog.

Exemptions are Maintained and Exclusions are Expanded

We have worked hard to listen to the agricultural community to ensure the new rule reduces regulatory requirements under the Clean Water Act and protects all existing permit exemptions for normal farming, ranching, and forestry practices. The rule spells out in black and white that it does not add any additional permitting requirements on agriculture. The rule not only maintains current exemptions, but it also expands regulatory exclusions. These added exclusions now carry the force of law through the Clean Water Rule. See exemptions and exclusions in this fact sheet.

Regulation of Ditches is Reduced

We heard the concerns about ditches and the need to reduce regulation of these manmade structures. In the final rule we made clear that we’re focusing on tributaries that could carry pollution downstream, not ditches. The rule says the Clean Water Act applies to ditches that flow year-round and excludes intermittent and ephemeral ditches, except the portion built in streams or wetlands. This reduces the regulation of ditches for agriculture. Here’s the language straight from the rule:
Rule Text § 230.3(s)(2)(iii): “The following are not ‘waters of the United States… the following ditches: (A) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary. (B) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands. (C) Ditches that do not flow, either directly or through another water, into [a traditional navigable water, interstate water, or the territorial seas.]” You only need to meet one to be excluded, not all three.

Definition of Tributary Brings Predictability, Certainty

The features we use to define “tributaries” in the rule – bed, banks, and ordinary high water mark – are exactly the same features used today by the agencies to determine the presence of a tributary, but without the regulatory certainty of being in the rule. This reliance on these same features always used by the agencies, but now codified in the Clean Water Rule, will ensure the result will not be an expansion of jurisdiction but instead more predictability and consistency.

Landowners Do Not Bear the Burden of Proof

The rule does not place the onus on the landowner to prove that their ditch qualifies for an exclusion or exemption. Quite simply, it is the responsibility of the Army Corps or EPA to prove a water is covered by the Clean Water Act; it is not the responsibility of a landowner to prove it is not a protected water.

No Change in Permits for Pesticides and Fertilizers

The Clean Water Rule does not make any changes to permitting for pesticides and fertilizers. The use of pesticides and herbicides is covered under a general permit which requires farmers to follow label instructions. Application of fertilizers on farmlands does not typically require a permit. If anything, the exclusions for ditches will reduce the need for permits. Here is more information about the general permit.

Maps Can’t Reflect Coverage of Clean Water Act

Some have asked for maps of protected waters or generated their own maps. That fact is that maps are useful tools for water resource managers, but they do not on their own determine Clean Water Act jurisdiction. The agencies have never and are not now relying solely on maps to determine jurisdiction under the Clean Water Act. The Army Corps of Engineers determines jurisdiction using site specific information in response to individual requests.

Maps generated by external parties are typically inaccurate portrayals of jurisdiction under the Clean Water Rule and visually exaggerate the waters covered. Here are some reasons why:

  • Some maps have shown more wetlands than would be covered under the Clean Water Act. That’s because these maps use a different definition of wetlands that is broader than the Clean Water Act definition.
  • Some maps depict the entire floodplain as jurisdictional. Under the Clean Water Rule, only certain waters within the floodplain would be covered, never the land itself.
  • Some maps exaggerate the size of waterways. For streams to be visible on the maps they must be shown by a discernible line that is not to scale and does not represent the actual stream width. At national and state scales, this can give the false impression that most of the state is water.

Conversations with Agriculture will Continue

We remain committed to engaging in productive conversations with America’s farmers, ranchers and foresters. Farms across America depend on clean, reliable water for livestock, crops, and irrigation. And we depend on those farms and ranches. Our goal continues to be protecting clean water while ensuring agriculture, ranching, and forestry thrive.

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