Unlike on television, for the past several years there has been another “Big Brother” episode unfolding that has not been at all entertaining, instead controversial consuming thousands of hours of effort and likely millions in legal expenses involving one California farmer running afoul of a federal government bureaucrat.
This conflict has centered around interpreting recent rule changes of the federal Clean Water Act (CWA) that was originally passed into law in 1972 during the Nixon administration. This law was a result of growing awareness for controlling water pollution and established a basic structure for regulating pollutant discharges into the waters of the United States.
Over the years, many other laws have altered parts of the Clean Water Act that are increasingly impacting the ability to farm. One component of the law that has been long scrutinized is defining exactly what are Waters of the United States (WOTUS). An early definition of WOTUS meant that a water body must actually be navigable. Over time, this definition was eroded to including any other water with a significant nexus or connection to navigable waters.
Throughout these changes, agriculture advocates including Farm Bureau were somewhat successful in including some exemptions to these increasingly burdensome rules. Most recently, a new version of EPA rules for WOTUS brought into play a much broader interpretation of the definition to include areas that may for a short period of time hold water.
The northern California farmer became involved in a lawsuit with the government when he was observed tilling a wheat field. He was accused of improperly disturbing a federal wetland, and the case was eventually ruled by a judge in favor of the government despite credible arguments to the contrary. When faced with the penalty phase of the case, which could have meant tens of millions in penalties, the prudent business decision for the farmer was to settle for much lower penalties with no admission of liability.
What this means is the government is telling farmers and ranchers they need permission to use their own land if it is anywhere close to what the government now considers WOTUS. What could also be in jeopardy are further narrowing of exemptions from permitting requirements under the CWA described as established farming, ranching, and silviculture 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.
Yes, Farm Bureau is going to continue working to protect all farmers and ranchers’ ability to responsibly work the land.
– Kim Vail, executive director of the Sonoma County Farm Bureau