Clean Water Act vs. America’s Family Farms: Should the Two Be Foes?

Sarah Johnson
Associate Editor
Loyola University Chicago School of Law, J.D. 2019

As summer turns to fall, leaves begin to change, and farmers in the Midwest start the process of harvesting their crops. Farmers are hard-working, environmentally conscious, planners, who consider how their planting, fertilizer, and equipment effect the environment that their livelihood depends on. They do all of this while still attempting to remain compliant with all applicable state and federal laws. Currently, farmers are worried about changes being made to the Clean Water Act and if they are going to incur large economic damages because of it.

Background of the Clean Water Act and amendments made to it

The Federal Water Pollution Control Act passed in 1948, and heavily amended in 1972, was the first law of its kind. It is commonly referred to as the Clean Water Act (CWA), and addresses the concern of water pollution throughout the United States. The wording at issue in the CWA is “navigable waters,” which is used multiple times throughout the act. The question presented is: What counts as navigable waters in the United States? The term navigable waters is defined as waters of the United States including territorial seas. Adjudication over the meaning of these words has gone on for years, determining where the government is and is not allowed to regulate.

In Rapanos v. United States, there was a plurality opinion with four justices finding a two-part test for determining whether a body of water was navigable. The test reads that the channels need to be relatively adjacent to a traditionally interstate navigable body of water and it needs to have a continuous surface connection with the water. To try to clear confusion surrounding this issue, President Obama signed the Waters of the United States (WOTUS) into effect in August of 2015. WOTUS declared that CWA covers “either traditional navigable water or interstate waters, as well as streams serving as tributaries to navigable waters… [as long as they are] relatively permanent.” While WOTUS was thought to settle this age-old debate, Donald Trump signed an executive order in late February telling the EPA and Army Corps of Engineers (the two agencies tasked with carrying out CWA) that they needed to revisit this regulation.

Why are environmentalists worried about this?

When farmers apply fertilizers or move their animals, a displacement of nutrients is possible. The most common nutrients that people are concerned about are nitrogen and phosphorus. While nitrogen and phosphorous are found in all environmental systems, the environmental concern arises when there is an abundance of these chemicals added to the ecosystem. The most frequent problem is nitrogen contained in soil, crop residues, fertilizers, and manures dissolving in water and driving the nitrogen levels up. This causes an overgrowth of algae, which can block sunlight from getting below the surface of the water. This pollution then leads to the dissipation of oxygen, which can kill plants and animals, ultimately leading to an ecosystem decline. If the result of excess nutrients were so detrimental to the environment why would small farmers be against the CWA if it truly protects the land as the land and ecosystems are their livelihood?

Why are farmers concerned?

Some small farmers may be concerned that if there is a broad overreach of the CWA, they will be unable to maintain their operations as they have for decades. Small farmers contend that they only use the fertilizer that they need, and nothing more. The average cost of fertilizer is around $150 per acre and small family farmers do not want to spend more money than necessary on fertilizer. They also want to make sure the land stays as healthy as possible so they can continue to farm for many years to come. Farmers, however, are worried that with the implementation of a broader CWA their land will be at issue and they will be required to pay for costly permits and land approvals which they cannot afford.

What is the real issue?

Farm lobbies and factory farms make it seem as if this ruling will be an end all be all to farming practices as they exist today. In fact, the CWA has Section 404(f)(1) exemptions to the CWA for “established farming, ranching, and silviculture activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, forest products, or upland soil and water conservation practices,” among other things. Another problem this lack of definition has been causing is regarding the use of buffers to ensure that nitrogen rich materials filter through enough grass and soil before entering any body of water.

Minnesota is the first state to pass legislation of this manner and small farmers believe that this may spread with the adoption of a broader definition of navigable waterways. The Governor of Minnesota did not confer with farmers before passing this law, which requires a 16.5-50ft buffer around any pool of water. Farmers worry that this will reduce their farmable land significantly without any form of compensation for the removal of land. As the farmers opposing this law made clear, they do not want to get rid of the law in its entirety, because they agree that the environment needs to be protected, but they do want to make sure that they are justly compensated for the land they will no longer be able to farm. There is again a problem of miscommunication with this law because it has been noted that there will be “flexibility and financial support for landowners to install and maintain buffers.”

Next steps

The critical next step is communication. While talking to the farming lobbies and factory farm owners is important, the government needs to reach out to family farms and make sure that their needs are being met. According to the USDA, there is a large decline of the family farm and a sharp increase in commercial farming. These restrictions would not be as financially burdensome on these large farming organizations, but the small, mom-and-pop farming operation struggles when an added expense is thrust into the payments they are responsible for. Small farms are not against the furthering of the health of the environment; they want to make financially responsible decisions that are good for the environment; that is what their livelihood depends on.