TWIN FALLS — A flock of ducks flew from cattails Thursday afternoon as two pickup trucks drove alongside the Perrine Coulee southeast of town. Just east of the coulee, a heron flew over ice-covered Britt Pond.
Twin Falls Canal Co. general manager Brian Olmstead put his truck in park and stepped out onto the frozen banks of the Main Perrine Wetland, created in 2003 to filter mud from the Perrine Coulee before it reaches the Snake River.
Water is diverted from the coulee above the pond, then it creeps through a large cleaning cell of reeds and cattails, where sediment from thousands of acres of irrigated farmland settles to the bottom of a wide ditch. The water flows into the pond then back into the coulee.
About a mile downstream, water is again diverted from the coulee and similarly filtered through a bog before entering the city of Twin Falls’ pressurized irrigation system.
And such is the simple filtering system employed by many water delivery systems in the West.
But the U.S. Environmental Protection Agency’s 2015 Clean Water Act threw the simplicity of the canal company’s system into question.
Under the 1986 Clean Water Act, such irrigation operations fell under the jurisdiction of the state and were given agricultural exemptions. But ever since the 2015 Clean Water Act significantly broadened the definition of “navigable waters” — the defining line between which waters are and which aren’t under federal jurisdiction — the nation’s agriculture industry has been stuck in a legal quagmire.
“The Clean Water Act recognizes that some surface waters should be regulated by the federal government, while some should be protected under state law...,” the American Farm Bureau Federation says on its website. “Unfortunately, in recent years federal agencies have muddied the waters with overreaching rules and regulations that are more about controlling land than protecting water.”
Before the 2015 ruling, which was co-written with the U.S. Army Corps of Engineers, the common interpretation of federal waters was a stream or body of water one can float a boat in, Paul Arrington, executive director of Idaho Water Users Association, told the Times-News during a Thursday phone call to his office in Boise.
But many bodies of water previously exempted are now considered “significant nexus” under the “Water of the United States” — WOTUS — ruling and subject to EPA restrictions. In response, state after state argued against the expanded ruling in court.
States and the agricultural community say the federal government has over-reached its authority by stepping into areas outside its statutory jurisdiction; environmental groups and conservationists, however, support the EPA’s expanded interpretation of WOTUS.
“The Clean Water Act regulates what you can do (to federal waters) from a water quality standpoint,” Arrington said. “Many people think the act needs to be more expansive.”
With the 2015 ruling, the ordinary and necessary maintenance and operation of ditches and ponds suddenly became suspect, he said.
The 2015 ruling was so vague, no one could make sense out of it, Olmstead said. Every aspect would have to be tested in court.
The ensuing legal battle was relentless. As a result of several years of legal wrangling, 28 states, including Idaho, are temporarily immune to the broadened definition of WOTUS in the Clean Water Act.
But that doesn’t mean Idaho can let its guard down, Arrington said. Twenty-two states are still affected by the ruling.
Arrington and the IWUA — which includes irrigation districts, other water delivery organizations and supportive services — continue to lobby for a Clean Water Act that makes sense and is easy to understand.
There may be light at the end of the tunnel, Arrington said.
Narrowing the scope of WOTUS
President Donald Trump tried to unsuccessfully to throw out the Obama-era ruling by issuing an executive order during the first months of his term. The EPA and Corps of Engineers then began a two-step process to revise the ruling.
On Dec. 11, the agencies announced a proposed revision of the definition of WOTUS and will ask for public comment for 60 days after publication in the Federal Register.
The proposal promises to “be clearer and easier to understand than previous regulations. It would help landowners understand whether a project on his or her property would require a federal permit or not—saving Americans time and money,” the agencies say in a joint fact sheet.