The new federal Clean Water Rule went into effect Friday in Washington, Oregon and California with agricultural groups still uncertain about whether the law will put farmers, ranchers and irrigation projects under more federal control.
Washington State Dairy Federation director of government relations Jay Gordon said he met in the morning with representatives from other farm groups and didn’t hear answers to questions he’s posed for months, including in meetings with the U.S. Environmental Protection Agency.
“There was a lot of speculation and not a lot of clarity,” said Gordon, a Western Washington dairyman. “Until they arrest me, I guess I won’t worry about.”
The uncertainty about the rule extends to whether it’s actually in effect. North Dakota U.S. District Court Judge Ralph Erickson granted an injunction Thursday sought by 13 states, including Idaho, to delay the rule’s implementation. North Dakota’s attorney general, Wayne Stenehjem, said he believes the injunction applied to all 50 states.
The EPA asserts the injunction only applies to the 13 states and that the new rule went into effect in the other 37 states as scheduled, 60 days after it was published.
Gordon blasted the EPA for forging ahead rather than waiting for clarification from the judge and a ruling on the underlying issue — whether EPA exceeded its authority under the Clean Water Act.
“It was immature behavior by the EPA,” he said. “They should have said, ‘We’ve got split decisions in the court. You know what? We’re not going to implement the rule today.’”
In response to an inquiry from the Capital Press, the EPA issued a statement saying it was evaluating the order and considering its next legal steps. EPA noted that U.S. District Courts in Georgia and West Virginia denied requests for injunctions.
All together, attorneys general in 28 states have sought to delay implementation. Washington, Oregon and California — all with Democratic attorney generals and governors — were not among the states.
“EPA is moving forward with implementation because the Clean Water Rule is fundamental to protecting and restoring the nation’s water resources that are vital for our health, environment and economy,” according to the agency’s statement.
The California Cattlemen’s Association director of government relations Kirk Wilbur said Friday the group is advising ranchers to be cautious about undertaking projects near water or places that are occasionally wet.
Ranchers should be wary about assurances from the EPA that the new rule won’t hinder agriculture, he said.
“When an agency is attempting to regulate you, it’s not always the smartest thing in the world to take their word for it,” Wilbur said.
Judge Ericksen, in his written opinion, stated that states were likely to prevail in seeking to permanently block the rule. The EPA rule positioned the agency to regulate “intermittent and remote wetlands” that have no connection to navigable waterways, he stated.
Wilbur said California’s state water pollution law already imposes strict standards, but agreed with Ericksen’s observation about the potential scope of the new federal rule.
“We don’t know to what extent the law will be enforced,” he said. “There’s a lot of ambiguity in the rule. You’re adding another level of bureaucracy.”
Oregon and Washington state agencies enforce federal and state water pollution laws, and officials in both states said the new federal rule won’t change their enforcement practices because they already have broadly defined the waters that must be protected.
“We do not think it will have a significant effect on how the state implements its various programs,” said Jennifer Wigal, Oregon Department of Environmental Quality’s water quality manager.
Washington Department of Ecology’s water quality manager, Heather Bartlett, also said the new EPA rule won’t change how DOE polices water pollution.
“The Legislature defined state waters over two decades ago,” she said in an email. “Ecology has used this state definition for any enforcement act. In addition, ecology retains enforcement discretion that we will continue to exercise.”
Washington Cattlemen’s Association Executive Vice President Jack Field said the new rule may not change DOE’s actions, but it’s uncertain how EPA will wield the authority.
The EPA could interfere with DOE’s recent efforts to work with ranchers on protecting water, he said.
“The biggest question is what the EPA will do with expanded authority, and that’s anybody’s guess right now,” Field said.
The Washington, California, and Oregon cattlemen’s association have all joined federal suits by private groups against the new rule.
In a written statement, the Oregon Cattlemen’s Association said Friday that EPA should rescind and rewrite the rule.
The rule “because of its broad language, has the potential to take water management on private property away from landowners and threatens locally driven initiatives that are proven to be effective,” according to the association.
Stan Wangberg, general manager of the Anderson-Cottonwood Irrigation District in Northern California, said Friday he was trying to learn whether the new rule will require the district to obtain federal permits to clean and line with concrete irrigation ditches.
“I’ve been thinking about it for the past couple of days, and I don’t know,” he said.
