The definition of “waters of the U.S.” fundamentally changed on Aug. 28 as the finalized 297-page Clean Water Rule officially went into effect for 37 states.
The U.S. Environmental Protection Agency claims this rule modification to the Clean Water Act is an effort to “ensure protection for the nation’s public health and aquatic resources and increase Clean Water Act program predictability and consistency by clarifying the scope of ‘waters of the United States’ protected under the act.” However, after wading through the final version of the WOTUS rule, a long list of state and local governments, businesses and agriculture organizations did not see this rule change as crystal clear, but rather as a mucky mess.
Ironically, the EPA made this rule change because the EPA’s and the U.S. Army Corps of Engineers’ authority to protect the nation’s streams and wetlands was confusing and complex as the result of Supreme Court decisions in 2001 and 2006. Yet, when the final version was published on June 29 in the Federal Register, many — including the American Farm Bureau and the National Pork Producers Council — questioned the real motivation of the regulatory change through the rulemaking process.
Bob Stallman, American Farm Bureau president, says, “This rule was never really about protecting water sources: It’s about giving EPA and the U.S. Army Corps of Engineers the power to regulate any activity on the land that they choose to regulate.” He further explains, “The definitions were so broad-reaching and vague about what would constitute a ‘water of the U.S.’ We pretty much deemed it a regulatory mechanism by which the EPA could effectively control land use.”
According to the EPA, these alterations to the Clean Water Act will not enlarge the scope of its jurisdiction, and this was just an adjustment to CWA rules. Government entities, landowners and businesses disagree. Those opposing the rule say the EPA is attempting to open the regulatory gate to govern land use and erode private property rights. Landowners are dismayed with the rule because if a water feature on a property is classified as WOTUS, then any activity on the land that could cause discharge of pollutants — such as dirt, fertilizer or pesticides — requires a National Pollutant Discharge Elimination System permit under the CWA.
Stallman says, “This goes far, far beyond any adjustment. This is an attempt to broaden the scope of regulation far beyond what Congress ever intended, far beyond what the Supreme Court has said the EPA has in terms of scope of authority under the Clean Water Act.”
It is not about clean water. All farmers and ranchers want clean water and understand the importance of water to the farming operation — grain or livestock.
National Pork Producers Council President Ron Prestage, a veterinarian and pork producer from Camden, S.C., says, “We all want clean water, but this rule isn’t about clean water. It’s about EPA and the Corps taking over private property, growing the size of government and micromanaging hundreds of farming and business activities.”
A significant nexus
Water runs downhill. Every farming operation is impacted by water. Under the final rule, new definitions are so vague that it is impossible for farmers and ranchers to determine what actually falls under the new federal jurisdiction. For streams, creeks, rivers and wetlands that visibly flow into navigable water there is no guessing game. However, those water features that only hold water one month of the year but eventually drain to those navigable waters could also qualify as WOTUS.
The EPA now says any water classifies as “waters of the U.S.” if it has a “significant nexus” with navigable water. Technically, the EPA in 50 pages describes that water has a significant nexus “when any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical or biological integrity of the nearest traditional navigable water, interstate water or the territorial seas.”
Functions that contribute to the chemical, physical or biological integrity of the nearest navigable water:
- sediment trapping
- nutrient recycling
- pollutant trapping, transformation, filtering and transport
- retention and attenuation of flood waters
- runoff storage
- contribution of flow
- export of organic matter
- export of food resources
- provision of life cycle-dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning or use as a nursery area)
Moreover, the agency relies on the EPA Science Report to determine if a body of water has connectivity with navigable water. In the EPA’s words, “Connectivity for purposes of interpreting the scope of ‘waters of the United States’ under the CWA serves to demonstrate the nexus between upstream water bodies and the downstream traditional navigable water, interstate water or the territorial sea.” The Science Report also declares all tributary streams to include perennial, intermittent and ephemeral streams, and states that these streams are connected to downstream water biologically through migration of aquatic and semiaquatic organisms. Therefore, the EPA claims all waters meet the new definition of “tributary” and have a “significant nexus” to navigable water.
The EPA does list certain waters as exempt. Ditches — an essential structure necessary for agriculture drainage — made the exemption list. However, there is a catch with the ditch exemption. For example, if any time in the history of the land a tributary was relocated or a tributary to drain a piece of land was built, then it does not meet the exemption. Another exclusion involving ditches is the zero ditch exemption. To meet this requirement, a ditch must contribute zero flow, even indirectly, to any navigable water.
Nevertheless, Ken Kopocis, head of the EPA’s office of water, in a webinar hosted by the EPA and the Corps right before the rule went into effect, reassured farmers that the rule would not negatively affect them. There will not be any changes to their permitting requirements nor have their land or practices come under the agencies’ jurisdiction. He states, “The jurisdictional status, particularly for agricultural land, we believe is unchanged from what existed under the old rule and what will exist tomorrow under the new rule.” Also, according to Kopocis, erosional functions, like puddles or gullies, are still considered dryland and not jurisdictional.
Additionally, Kopocis reiterated normal farming practices are exempt from permitting. A farmer must have been farming continuously at the same location since 1977 to benefit from the exemption. In spite of this, Kopocis says the agency is not focusing on farming activities that may involve a discharge of dredged building material that may require a permit if it’s being undertaken for the first time.
With all that said, the final rule also states that if water does not fall within certain jurisdiction categories, it can still be deemed WOTUS through a case-specific analysis. Michael Formica, chief environmental counsel for the National Pork Producers Council, says a distressing part about identifying WOTUS is the interpretation of the rule by agencies’ employees, especially on the regional level. An agency employee can sit at their computer, pull up a map and claim at one point in time there was a stream on that property. That stream now may be dry or not actually present on the land, but the property now contains a water of the U.S. and falls under the regulation.
There lies the nucleus of the WOTUS debate. The “clarification” of what water feature qualifies as a WOTUS is clear as mud. Stallman says the definitions are designed in such a way that any place water runs will qualify as WOTUS. Furthermore, all activities on that land that potentially could cause a discharge of a pollutant will require an NPDES permit.
If any water on private property qualifies as WOTUS, the landowner without a permit could face hefty fines of $37,500 per incident per day per violation for an unauthorized discharge of pollutants. At this point, the options for farmers and ranchers to curtail the risk of not violating the CWA will involve lengthy paperwork and time. The options currently available for farmers and ranchers are:
- request a Jurisdictional Determination from the Corps to definitively identify WOTUS on your farm or ranch
- automatically presume that certain features are WOTUS and avoid anything that might result in a discharge to those areas
- ask for clarification from the Corps about whether your activities in or near WOTUS qualify for one of the section 404 permitting exemptions
- apply for a Section 402 or 404 permit when conducting activities that could possibly result in a regulated discharge
For pork producers, CWA compliance and NPDES permits are not a new concept. It is a normal part of everyday operation, but this “adjustment” could disrupt normal cropland activities necessary to raise grain for livestock feed. Stallman says the new WOTUS rule will have “an extremely dampening effect on our ability to produce food, fiber and fuel in this country.”
When a farmer is obligated by regulations to go to a federal agency to get a permit for normal farming activities — planting, harvesting, building a fence, applying pesticides or fertilizer — those activities will be in the control of the federal government.
More importantly, the federal laws and regulations around the CWA allow private entities including non-governmental organizations to file suits against individuals performing activities that they believe are not in compliance with the CWA and challenge the EPA for enforcement, Formica says. Many experts agree that the EPA and the Corps will not immediately change the way the agencies do business, but environmental activist groups may use the courts to change the practices of farmers and ranchers.
Legal remedy rescue
Unless clarification or remedy is provided soon, farmers and ranchers could be facing a storm of confusion, government paperwork and a cesspool of ligations. Despite the thousands of comments received during the public comment period from a wide range of individuals from various industries, the EPA placed its stamp of approval on the rule without addressing the concerns voiced. In addition to the stakeholders’ concerns, the House Committee on Oversight and Government Reform released internal memos written by Army Corps of Engineers top official, Maj. Gen. John Peabody, voicing concerns and asking the EPA to make corrections or the rule as written would make it difficult for the agency to determine which land features to regulate.
At this point, the only real options to reverse the WOTUS rule are either a legislative fix or litigation. Entities opposing the rule have joined forces in both directions. Legislation was introduced in both chambers calling for the rule to be scrapped and requiring the EPA and the Corps to start over. This legislation is still pending at press time.
Three lawsuits were filed by groups of state attorneys in Georgia, Ohio and North Dakota. A fourth lawsuit was filed by various organization groups representing agriculture — including the NPPC — and landowner organizations. Several parties also requested a preliminary injunction to delay the rule implementation.
On the day before the WOTUS rule went into effect, U.S. District Judge Ralph Erickson in Fargo, N.D., granted a temporary injunction. Two other courts in West Virginia and Georgia found the authority lies with the U.S. Court of Appeals and denied the preliminary injunction.
In a statement following the North Dakota court decision, the EPA said the injunction only applied to the 13 states involved — Alaska, Arizona, Arkansas, Colorado, Nebraska, North Dakota, South Dakota, Idaho, Missouri, Montana, Nevada, Wyoming and New Mexico. For the remainder of the states, “in all other respects, the rule is effective on Aug. 28,” the EPA states.
Unfortunately, uncertainty will have all parties reaching for a life preserver. Until a legal remedy for all 50 states reverses or changes the final rule that went into effect on Aug. 28, landowners, the EPA and Corps will have to work with the WOTUS rule as written.