Home Jurisdiction Ag WOTUS roundtable seeks clear definitions as drought continues to grip the west

Ag WOTUS roundtable seeks clear definitions as drought continues to grip the west

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“We need a crystal clear exclusion from Clean Water Act jurisdiction for all major Western irrigation infrastructure. Otherwise, the entire Western Irrigation and Drainage System can be classified as a WOTUS and subject to truly incredible bureaucratic red tape.

“This could potentially disrupt the timing of water deliveries and lead to the fouling of some of the most reliable and consistent sources of food and fiber in the country and the world. Without clear exemptions for these irrigation devices, we We know we will see critics of irrigation agriculture claim that these features are not subject to the jurisdiction of the Clean Water Act, and this could lead to years of costly and lengthy litigation.”

Expanded regulation in the West, he said, could create uncertainty and “cripple Western agriculture.”

CLEAR AGRICULTURAL EXCLUSIONS

Jamie Johansson, president of the California Farm Bureau Federation, said a new WOTUS should have exclusions for farmers and ranchers.

Without the exclusions or exemptions, he said, California farmers and ranchers could have a harder time with soil conservation efforts.

“They may want to engage in mitigation activities. Farmers also undertake projects that include stormwater management, wildlife habitat, flood control, nutrient treatment, improvement and enhancement overall water quality in its ephemeral characteristics,” Johansson said. “But if a farmer can’t do that without applying for a federal permit, it can be prohibitively expensive, leading to environmental degradation.”

As things stand, he said, farmers and ranchers often wait at least six months for jurisdictional decisions from federal agencies before completing conservation and other projects.

“The damaging delay is compounded by the cost of consultants, engineers, permit applications and mitigation measures and compliance costs that make the process simply untenable for many,” Johansson said.

UNCERTAINTY CREATED

Jennifer Carr, deputy administrator of the Nevada Division of Environmental Protection, speaking on behalf of the Nevada Farm Bureau Federation, said the case-by-case approach to making decisions under Clean Water Act creates uncertainty for agricultural producers.

Additionally, she said any effort to regulate groundwater through the Clean Water Act would be misguided.

“When the corps considered whether a ditch replaced a previous natural drainage to decide whether or not it could be jurisdictional as a tributary, there may sometimes be historical maps that predate the construction of these ditches , and sometimes those maps and things have just been lost over the centuries when it comes to identifying tributaries in that environment,” she said.

Carr said case-by-case determinations are “onerous and time-consuming” and landowners “lose clarity” on which waters may be jurisdictional.

The 2015 EPA Connectivity Report claimed that lakes and reservoirs can contribute groundwater, which ultimately contributes to other surface water flows. Carr said there was no reason to make groundwater jurisdictional.

“The vastness of western topography really needs to be considered carefully when considering mountain lakes,” she told the agencies.

“Now, when it comes to ephemeral waters, the character of ephemeral waters in Nevada can vary even within our own state,” Carr said. “I think, across the country, personnel (in federal agencies), especially maybe in Washington DC, have very different mental models of what our country looks like based on their life experience.”

In the West, Carr said, rainstorms often “hang” on mountain tops and deliver a “significant amount” of precipitation.

“These ranges are on hillsides and can carry streams,” she said. “But, often, we have bridges, femoral water bodies that can last decades between flood events. Just because a line can be drawn on a map doesn’t theoretically bring water from ‘a hill to the jurisdictional waters downstream that this line should be drawn.’

Additionally, Carr said there are concerns that the new WOTUS definitions will affect water rights in the West.

“An agricultural producer may not have a water right old enough to be able to bring that land into production, and therefore it may go out of production and become dry and potentially lose cropland status simply because it has no not allowed to ask for water,” she said.

“So any discussion of previously converted cropland must have a real recognition of how Western water rights and water law work.”

ROLES OF STATES

Amanda Kaster, director of the Montana Department of Natural Resources, told the roundtable that any changes to WOTUS should recognize the role of states in preserving water resources.

“The jurisdiction of federal agencies is not unlimited, as was specifically recognized by Congress when passing the Clean Water Act,” she said.

Regarding Montana waters, Kaster said there is concern that a new definition will affect wetlands that are not adjacent to otherwise navigable waters such as lakes and streams. Additionally, she said WOTUS’ changes to ditches, potholes, ephemeral waters and other intermittent waters could have broad effects on landowners across the state.

Federal agencies have three final WOTUS panels scheduled for this week, including a panel hosted by the Natural Resources Defense Council on Tuesday; the North Carolina Farm Bureau Federation on Thursday; and Friday, the final panel hosted by the Association of County Commissioners of Wyoming, Association of Montana Counties and Association of Idaho Counties.

Learn more about DTN:

“KS WOTUS Panel Reports Farmer Concerns”, https://www.dtnpf.com/…

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

Follow him on Twitter @DTNeeley