Clean Water Act Rule Clarity Sought

Ag Groups Concerned About Regulation of Ditches

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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A proposed Clean Water Act rule defines all ditches with a bed, bank and high-water line as tributaries potentially subject to federal jurisdiction, according to Wyoming State Engineer Patrick Tyrrell. (DTN file photo by Richard Oswald)

OMAHA (DTN) -- As critics contend a proposed Clean Water Act rule will extend EPA's authority over water in ditches and that the rule will be open to inconsistent enforcement, one agriculture industry representative told a House subcommittee Tuesday that at least one EPA region already is looking closely at ditches as point-sources in need of CWA permits.

The American Farm Bureau Federation in recent months launched the so-called "Ditch the Rule" campaign aimed at rallying farmers to speak out against the rule. EPA recently extended the public comment period to Oct. 21.

Although an EPA official told Congress recently that upland waters that flow into ditches would not be regulated in the new rule, a number of witnesses testifying before the House Subcommittee on Power and Water continued to raise concerns that the proposed rule will be left wide open to interpretation.

Randy N. Parker, chief executive officer of the Utah Farm Bureau Federation, said based on a conversation he had with officials at EPA's Region 8 -- covering Montana, North Dakota, South Dakota, Wyoming, Utah and Colorado -- agriculture producers in those states should be concerned about ag return flows into ditches. When it comes to water that runs across a farm, through a ditch and to a stream, Parker said Region 8 is "interested in it as a point-source."

When asked by the subcommittee if he could think of examples of waters that would be exempt from the new rule, Wyoming State Engineer Patrick Tyrrell said, "I can't off the top of my head."

While the proposed rule includes an EPA exemption for "wholly" upland waters that flow into ditches, he said state regulators still will be left confused. In Wyoming in particular, Tyrrell said the state doesn't have a lot of upland waters.

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"It looks to be a case-by-case basis," he said. "The clarity is the issue to me."

The proposed rule defines all ditches with a bed, bank and high-water line as tributaries potentially subject to federal jurisdiction, Tyrrell said. That would include roadside, irrigation and storm water ditches. There would be an exemption for ditches that do not contribute flow, either directly or indirectly, to water identified as navigable, interstate waters, territorial seas and impoundments.

"However, the 'waters are muddied,' which places citizens, governments, and other entities in a position that they can no longer rely on the workable bright-line rule categorically excluding ditches," he said in his written testimony. "This will disrupt agricultural, governmental and emergency operations."

The rule does not clarify which waters are jurisdictional "unless we are to assume that nearly all waters fall under such jurisdiction and in fact, creates confusion and potential conflict with the Supreme Court's interpretation," Tyrrell said.

Wyoming and many other states are concerned about EPA's move to expedite the scientific review timeline "and the glaring lack of state involvement," he said, as reasons for concern that EPA and the Army Corps of Engineers are "attempting to implement a policy decision that all connections between waters are 'significant' without regard to how much or how often they actually contain water or influence truly navigable waters."

EPA's lack of consultation with states on the rule, Tyrrell said, "erodes the very trust and cooperation upon which we co-regulators depend. The process employed here adds insult to the injury inflicted by an illegal and unwise rule."

Lawrence E. Martin, attorney with Halverson Northwest Law Group in Yakima, Wash., representing the National Water Resources Association, said EPA proposed exemptions leave too much room for interpretation.

Artificially irrigated areas that would revert to upland when water application ceases, are exempt, for example. "But there is no definite clarification as to what qualifies as an 'upland,'" he said in his written testimony. "The proposed rule also properly excludes groundwater from its definition of waters of the United States, but it does not reconcile that exclusion with its inclusion of certain waters based on a subsurface groundwater connection."

In addition, Martin said other exclusions not clearly defined include gullies, rills, non-wetland swales and certain types of upland ditches, or those ditches that do not contribute flow to a water of the U.S.

"Again, key terms like 'uplands' and 'contribute flow' are undefined," Martin said. "For the people I represent, it is imperative that the rule define how currently exempt ditches will be distinguished from jurisdictional ditches. The proposed rule needs greater clarity, ensuring that the historic exemptions for irrigation ditches and associated infrastructure are retained."

Todd Neeley can be reached at todd.neeley@dtn.com

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Todd Neeley

Todd Neeley
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