Farming practices are exempt from the Clean Water Act--The Cocklebur #1
But industrial agriculture has successfully waged a long-term campaign of misinformation and false rhetoric to muddy the water about clean water standards in rural America.
The U. S. Senate voted 53-43 this week to repeal the Biden Administration’s “Waters of the United States” (WOTUS) rule issued in January. The revised WOTUS rule clarifies the business activities that would require Environmental Protection Agency (EPA) permits for operation in specific rivers, streams, and wetlands under the federal Clean Water Act.
The Senate vote follows a U.S. House of Representatives Resolution passed 227-198 earlier this month “providing for congressional disapproval” of the Administration’s WOTUS update.
A statement issued by the White House on March 6, 2023, maintained that “the final rule provides clear rules of the road that will help advance infrastructure projects, economic investments, and agricultural activities— all while protecting water quality. If Congress were to pass H.J. Res. 27, the President would veto it.” This would be President Biden’s second veto since taking office.
The WOTUS firestorm has been brewing for years, with numerous industrial agriculture groups (such as the Farm Bureau and checkoff-funded commodity organizations) and their allies in Congress repeatedly bashing the WOTUS rules as “burdensome regulations” and “government overreach.”
These claims are completely inaccurate, according to proponents of the revised WOTUS rule, who point to clear guidance from the EPA that specifically exempts regular farming practices.
“WOTUS is basically just being used as virtue signaling by politicians in an attempt to show that they’re ‘pro-agriculture,’” said Chris Jones, a Research Engineer at the University of Iowa’s IIHR, a hydroscience and engineering research center. “A lot of the outrage is really just phony.”
The public opposition to WOTUS is a warning shot to any efforts that would regulate agriculture under the Clean Water Act, Jones said. “With these exceptions for farming and agriculture included, this doesn’t amount to more than cosplay in anti-regulation for a pollution rule that doesn’t even actually regulate farmers.”
“It’s unacceptable for our elected officials to attempt to overturn scientifically supported, common sense policy,” said Tarah Heinzen, Legal Director of Food and Water Watch. “The purpose of the Clean Water Act is to protect and restore our nation’s waters. The Biden EPA’s rule restores protections for many rivers, streams, and wetlands and is a critical step toward accomplishing that goal.”
Unfortunately, Heinzen said, the WOTUS debate has been focused on fearmongering by corporate agribusiness rather than the facts.
“Agriculture is the number one source of water pollution in the U.S., in large part because most agricultural polluters—including most factory farms—are not regulated at all,” said Heinzen. “But that hasn’t stopped factory farm interests from trying to further weaken our clean water protections.”
Chloe Waterman of Friends of the Earth said that this issue goes beyond WOTUS. “The entire agricultural industry is exempt from nearly all environmental protection laws. That’s the core issue here.”
“The WOTUS attacks fit into a broader theme under Congress and the Biden Administration, and that’s exceptionalism when it comes to regulating industrial agriculture,” Waterman said. “It’s very frustrating to see our elected officials—Democrats in particular—continue to coddle Big Ag and their lobbying groups.”
The fact that farming practices are exempt from the Clean Water Act rules hasn’t kept Republicans from using wildly-exaggerated rhetoric and hyperbole to support their anti-environment agenda.
While bringing the resolution to the House floor, Representative David Rouzer (R-NC) stated, “President Biden’s new WOTUS rule is a nuclear warhead aimed squarely at our farm families, small businesses, homebuilders, every property owner, and entire communities because of its overreaching definition. . . . Cloaked under the guise of clean water, all this rule does is expand the federal government’s control over states, localities, and private landowners, making it harder to farm, build, and generate economic prosperity.”
Senate Minority Leader Mitch McConnell made similar false statements on WOTUS this week, claiming that the updated rule is a “radical power grab that would give federal bureaucrats sweeping control over nearly every piece of land that touches a pothole, ditch, or puddle.”
Beyond WOTUS, House and Senate Republicans on the Agriculture Committees regularly use this same strategy of misinformation and disinformation to target everything from the proposed Securities and Exchange Commission climate disclosure rules, to issues with pesticide registration, and proposals to change capital gains and inheritance taxes. During hearings and floor speeches, they often defer to Farm Bureau and industry lobbyist talking points.
The EPA’s “Final Revised Definition of WOTUS” documents the thorough agricultural exemptions in the rule. Current Clean Water Act exclusions include:
Normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices.
Maintenance of dikes, levees, groins, riprap, and transportation structures.
Construction of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches.
Construction or maintenance of farm roads, in accordance with best management practices.
The Biden WOTUS rule includes additional exemptions for agriculture, such as:
Prior converted cropland.
Waste treatment systems.
Ditches (including roadside ditches) excavated wholly in and draining only dry land, and that do not carry a relatively permanent flow of water.
Artificially irrigated areas that would revert to dry land if the irrigation ceased.
Artificial lakes or ponds created by excavating or diking dry land that are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing.
Artificial reflecting pools or swimming pools and other small ornamental bodies of water created by excavating or diking dry land.
Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction operation is abandoned and the resulting body of water meets the definition of “waters of the United States.”
Swales and erosional features (e.g., gullies, small washes) that are characterized by low volume, infrequent, or short duration flow.
Despite these numerous exemptions, a handful of Democrats in the House and Senate joined Republicans voting in favor of H. J. Res. 27. Democrats who voted against the Biden Clean Water Act rule in the House are Representatives David Scott (D-GA, Ranking Member of the House Agriculture Committee), Sanford Bishop (D-GA, Ranking Member of the House Appropriations Agriculture Subcommittee), Angie Craig (D-MN), Don Davis (D-NC), Jared Golden (D-ME), Jim Costa (D-CA), Jimmy Panetta (D-CA), Henry Cuellar (D-TX), and Vicente Gonzalez (D-TX). Senators Joe Manchin III (D-WV), Jon Tester (D-MT) Catherine Cortez Masto (D-NV), Jacky Rosen (D-NV), and independent Kyrsten Sinema (I-AZ) joined Republicans in voting to overturn the rule.
The only Republican voting to retain the Biden WOTUS rule was Representative Brian Fitzpatrick (R-PA).
The WOTUS rule took effect on March 20th, 2023, though implementation is threatened already by successful legal challenges in Idaho and Texas. Additional states are challenging the rule. The Supreme Court is also considering a related case, Sackett v. EPA, with a decision expected this year.
The Cocklebur covers rural policy and politics from a progressive point-of-view. Our work focuses on a tangled rural political reality of dishonest debate, economic and racial disparities, corporate power over our democracy and disinformation peddled by conservative media outlets. We aim to use facts, data and science to inform our point-of-view. We wear our complicated love/WTF relationship with rural America on our sleeve.