Clean Water Rule

Clean Water Rule

Clean Water Rule

Federal regulators issued a much-anticipated proposed rule on the Clean Water Act (CWA) this spring just as U.S. farmers were getting ready for another irrigation season.

The EPA and Army Corps of Engineers released the 371-page document on March 25. The proposal will be open for public comment for 90 days.

The proposed rule is designed to clarify which waterways are subject to discharge permitting requirements under the CWA. Some agriculture groups and lawmakers immediately blasted it as another example of government intrusion.

The proposal makes clear that most rain-dependent and seasonal streams would be protected even though they are dry much of the year.

“About 60 percent of stream miles in the U.S. only flow seasonally or after rain, but have a considerable impact on downstream waters,” EPA officials said in defense of the proposed rule.

The proposal also specifies that all wetlands near rivers and steams will be protected.

According to federal regulators, farmers would seem to have little cause for concern.

“The proposed rule preserves the Clean Water Act exemptions and exclusions for agriculture … Any agriculture activity that does not result in discharge of a pollutant to waters of the U.S. still does not require a permit,” the agencies said in a joint statement.

The proposed rule does not extend CWA protections to any new types of waters that have not historically been covered under the landmark legislation, federal regulators said. Despite those assurances, farmers and ranchers have good reason to worry, the American Farm Bureau Federation (AFBF) said after a review of the proposal.

“Under the EPA’s proposed new rule, waters — even ditches — are regulated even if they are miles from the nearest ‘navigable’ waters. Indeed, so-called ‘waters’ are regulated even if they aren’t wet most of the time,” AFBF President Bob Stallman said in a statement.

Boise, Idaho attorney Scott Campbell, who specializes in water law, expects the proposed rule to become final with only a few changes to “placate” critics.

Campbell represents several irrigation districts in western Idaho.

“This is a huge overreach by the federal government to regulate virtually everything that pertains to water,” said Campbell.

Environmentalists have tried for years to expand the reach of the CWA, but having failed in Congress and the courts, they’re now pushing for the administrative rule change, he said.

The proposed rule will greatly increase liability exposure for irrigators and farmers and lead to a flood of civil lawsuits, Campbell predicted.


Read more of the article here:  Clean Water Rule, Spudman Magazine, Scott Campbell-Moffatt Thomas



Scott L. Campbell practices in the areas of water, environmental, administrative, energy and agriculture (ranching and farming) law.  He has also handled matters involving real estate contract litigation, title insurance defense, municipal law, land development transactions, planning and zoning litigation, and legislative lobbying for several clients.  He is a frequent lecturer and writer on water resource and environmental topics.  Scott has been a member of the Idaho Water Users Association Legislative Committee since 1987.  He can be reached at or (208) 345-2000.  More information on the firm is available at