Repealing the Clean Water Rule is not about protecting farmers

Last week, EPA Administrator Andrew Wheeler signed a rule repealing the 2015 Clean Water Rule. That Obama-era rule defined the rivers, streams and wetlands considered “waters of the United States” _ in other words, waters requiring protection under the federal Clean Water Act.

The repeal was justified, in large part, because of the Clean Water Rule’s impact on farmers. Calling it “one the worst examples of federal regulation,” President Trump  said the Rule is “prohibiting [farmers] from being allowed to do what they’re supposed to be doing.”

In fact, the Clean Water Rule had very little effect on farmers. The real beneficiaries of the repeal include deep-pocketed developers, the fossil fuel industry, and mining companies.

Farmers were never seriously impacted by the rule. That’s because the original 1972 Clean Water Act regulates discharges from “point sources,” but exempts most agricultural discharges, relieving farmers of the need for permits for runoff from their land. It doesn’t matter if a neighboring stream is a “water of the United States” if a farm’s runoff into it is exempt. When the Clean Water Rule was passed in 2015, it included all of the original exemptions from the Clean Water Act, and even added new ones.

Second, the Clean Water Act exempts farming and ranching activities from the need for a permit to fill wetlands if those wetlands are “prior converted cropland.” In other words, if a wetland has been tilled, farmed or ranched for years, it’s exempt from the normal permitting requirements, regardless of the new definition of waters of the United States.

Third, in response to farmers’ concerns, the Clean Water Rule added a new exemption for certain types of ditches and puddles, to ease the concern that EPA would start regulating minor water bodies on farmers’ properties. The Rule has been in effect in 21 states for almost four years, and there have been no reports that agriculture in those states is doing worse than in the states where the rule is not in force.

So, who really benefits from the repeal of the Clean Water Rule? To answer that question, we looked at EPA data on who is seeking permits under the Clean Water Act to fill wetlands, streams and shorelines. Those permit-seekers are the true beneficiaries of loosened regulations.  The data show that farmers rarely request such permits. The majority of the 248,688 federal permits issued from 2011 to 2015 were given to developers and extractive industries such as oil, gas and mining companies. 

These data make clear that the Trump administration’s repeal and replacement of the Clean Water Rule is being done to allow builders to drain wetlands, oil and gas drillers to dredge pipelines across streams and wetlands, and mining companies to fill in small streams and wetlands without getting a federal permit or mitigating the damages of these actions.

The 2015 rule is currently in effect in 21 states, the District of Columbia and all U.S. territories, and stayed in the rest of the country pending the outcome of litigation. When the repeal goes into effect, it will remove the protections currently in place in those 21 states. The Trump administration has proposed a replacement rule, which is expected to be finalized in December; it will significantly curtail what waters and wetlands are protected under the Clean Water Act.

EPA and the Army Corps of Engineers argue that the repeal will not harm the environment, since states will step up to protect these waters and wetlands once the federal government removes Clean Water Act protection. The history of water pollution regulation in this country instructs otherwise.

Before Congress enacted the Clean Water Act, the states were in charge. Rivers caught fire, beach closures and fish kills were common, and two-thirds of the nation’s lakes, rivers and coastal waters were unsafe for fishing or swimming.

Today, states will find protecting wetlands very challenging because state budgets are very limited, and only 20 states have some sort of wetlands protection program. Thirty-six states have laws that make it difficult for them to take actions beyond those required by federal law. Great harm will be done because, once a stream or wetland has been filled or drained, it is lost forever. The loss of wetlands will harm water quality, while removing our best defense against flooding.

By significantly curtailing the reach of the Clean Water Act, the Trump administration is turning back the clock to 1972. All Americans — farmers included — will suffer the consequences of degraded water quality and damaging floods.

Mark Ryan served as assistant regional counsel for EPA Region 10 and special assistant U.S. attorney at the Department of Justice. Ryan was an author of the 2015 Clean Water Rule.

Betsy Southerland is the former director of Science & Technology in the EPA Office of Water.