Water, water, everywhere…but whose water is it?

According to the Waters of the U.S. (WOTUS) rule, the government controls it all…specifically the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers. However, recently uncovered documents reveal that not even EPA and the Corps are in agreement about what constitutes a WOTUS site and whether the data from the Corps was used properly by EPA in WOTUS.

Farmers got their first tiny respite from WOTUS when a Federal court in North Dakota sided with the National Cattlemen’s Beef Association, blocking WOTUS less than 24 hours before it was to go into effect. Farmers convinced the court that WOTUS would cause “irreparable harm” to them.

At that time, it was not all good news. EPA argued that particular court’s decision applied only in the West (specifically Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North and South Dakota, and Wyoming), not on the East Coast or elsewhere.

Then, in late October, the Sixth Federal Court in Cincinnati ruled that the North Dakota court ruling applied nationwide. As a result, farm legal experts now say there is no doubt that the injunction applies nationally…from New England to California. However, the Sixth Circuit’s was a 2-1 decision, with the objecting justice questioning whether the Sixth Federal Court even had jurisdiction to make a decision. While the ruling does have the force of law, the dissenting vote had to encourage EPA who maintained it will continue to fight for WOTUS as they feel it should be.

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Many farm groups were placing a lot of hope in a prompt legislative solution to clarify the situation or to do away with WOTUS altogether. In early November, the U.S. Senate failed to pass SB-1140, called the Federal Water Quality Protection Act. It would have halted the EPA and Army Corps of Engineer’s WOTUS rule. With the failure of SB-1140, hopes for quick legislative relief were crushed. However, shortly thereafter, the Senate passed Senate Joint Resolution 22, a joint resolution of disapproval of WOTUS.

Who and what are covered?

“Is my land water?” asked Mark O’Neill, strategic communications director for Pennsylvania Farm Bureau (PFB), Camp Hill, Pennsylvania. There are many uncertainties about who has to get a permit and who does not. The Courts did not resolve that. Farm Bureau figured that, with EPA’s widest definitions, as much as 99 percent of Pennsylvania farmland (including Somerset and Schuylkill Counties) could potentially be covered by WOTUS.

“While EPA was telling the public that agriculture exemptions would remain in place and have no real impact on the farming community, the agency included language in the final rule that (according to the new maps) characterizes as much as 99 percent of Pennsylvania’s land mass as federally regulated ‘water,’ and therefore subject to EPA scrutiny,” PFB President Rick Ebert said.

“There is a huge concern about this,” O’Neill said. “Farmers have been talking about this all year and the year before…since April, 2014. Hundreds of farmers sent in comments. But when the final rule came out (from EPA), it was even more restrictive than the proposal.”

The court decisions certainly serve to reinforce the notion in Congress that there are a lot of upset growers and farmers. Congress is aware. The U.S. House passed legislation with rare bipartisan support that calls for the rule to be withdrawn. The Senate had worked on its companion bill, S-1140, which would have required the EPA to withdraw WOTUS and start over with an array of stakeholders participating in the process.

As WOTUS was written, the EPA and the Corps enjoy expanded jurisdiction under the U.S. Clean Water Act (CWA). As a result, many typical farm activities may now result in “discharges” of “pollutants,” the U.S. Farm Bureau said. Such activity will put the farmer afoul of Federal law.

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WOTUS tells farmers how they can use their land and imposes permitting requirements to engage in routine farming practices, which may or may not include plowing or terracing. Whether a farmer or other landowner agrees with the rule’s designation, if the law stands, they must adhere to what the new law defines as wetlands, Farm Bureau said.

The more recently a farmer started farming (especially for any farming begun after 1977), the less likely the farm operation is to get an exemption for normal farm practices like plowing, cultivating, soil ripping and the like.

Farmers face fines up to $37,500 per day for violation of the Act.

Many farmers and their representatives – ranging from Farm Bureau to the National Corn Growers Association – think the rule needs to be killed. “Ditch the rule!” Pennsylvania Farm Bureau encouraged its members in a campaign to lobby their U.S. senators from Pennsylvania.

The American Farm Bureau Federation figures it has 59 votes for repeal. However, 60 are needed to make it “bombproof.”

Farmers are not the only ones opposed. Associations of county commissioners, builders associations, extractive industry political action committees and township supervisors all sent people to Washington to speak against the measure.

Historical view

Some feel the EPA’s provisions will be modified properly. Other worried opponents of the CWA point to history, recounting the story about the original income tax bill passed in the early 1900s. Some in Congress wanted language that would limit the Federal income tax to 10 percent. That language was killed on the rationale that if it were inserted in the law, someday some Congress would raise taxes to that extreme level. Just as tax brackets today far exceed 10 percent, opponents fear that EPA will eventually far expand its reach to include “ponds, ditches, and potentially even puddles,” according to the Pennsylvania Cattlemen’s Association.

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O’Neill said the EPA will use computer simulations to determine what land is possible wetlands and what is not. The simulations could define a farm as being a part of a wetland even if the acreage has been dry and plowable the whole time the farmer owned the place.

The maps, prepared by Geosyntec Consulting, show the dramatic expansion of regulatory reach that EPA claims under WOTUS and the vulnerability of virtually all land in the Commonwealth to potential regulation by EPA in the future, Ebert said.

“The maps show that WOTUS should be a concern for everyone who owns land in Pennsylvania. The rule is extremely complicated and confusing, but also vague, granting EPA unlimited power to determine whether any track of land is subject to new regulations. For farmers, it could mean new requirements for federal permits, restricting farming on existing land and severe penalties for using crop protection tools that are safe, scientifically sound and federally-approved,” Ebert said.

Farmers wasted no time in objecting. An early salvo was fired at the end of August when the U.S. District Court for the District of North Dakota issued a preliminary injunction against the EPA and the Corps of Engineers, postponing implementation of WOTUS.

Corps disagrees

In fact, even the Corps had reservations about the EPA’s stance. Internal communications from the Corps of Engineers to the EPA identified problems with the science applied by EPA and EPA’s use of a flawed economic study in attempting to “justify” its rule.

The Corps specifically noted: “Corps data to EPA has been selectively applied out of context, and mixes terminology and disparate data sets. In the Corps judgment, these documents contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies and logical inconsistencies.” The documents also noted that EPA’s rule included “gross misrepresentation of Corps raw data.”

At one point last May, it got so divisive that the Corps asked that the EPA not identify the Corps as an author, co-author or substantive contributor to the new regulations.

In addition, those documents revealed the Corps has concerns with the legality of standards pursued by EPA in the final WOTUS rule: “It will be legally vulnerable, difficult to defend in court, difficult for the Corps to explain or justify and challenging for the Corps to implement,” the Corps said. Corps officials concluded that the final rule is “inconsistent with SWANCC and Rapanos (the Supreme Court decisions)” and said that EPA’s “assertion of CWA jurisdiction over millions of acres of isolated waters…undermines the legal and scientific credibility of the rule.”

Chip Bowling, president of the National Corn Growers Association and a farmer from Newburg, Maryland, issued the following statement: “We support the judge’s decision in North Dakota, which should give the courts and the public more time to figure out how to proceed with WOTUS. The Army Corps of Engineers has stated this rule is not based on science or law and is unlikely to withstand a legal challenge.

“When even the federal agencies responsible for this rule can’t agree on its constitutionality, it’s time for EPA to withdraw the rule and start this process over,” Bowling said.

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“The WOTUS rule will have serious consequences for every farmer and rancher in America,” he continued. “It must not be allowed to stand. From the beginning, we have asked for a rule that provides farmers with clarity and certainty about their responsibilities under the Clean Water Act. Instead, what we got was less clarity and less certainty – along with more paperwork, more permits, and more hassle,” Bowling said. “This court decision reinforces the need to permanently repeal the WOTUS rule.”

“We supported SB-1140 because we believe the EPA, the Corps, farmers and other stakeholders must collaborate on a better rule we can all get behind. While that bill did not pass, we appreciate the Senate’s actions (passing SJR-22), and we remain hopeful that cooperation and dialogue can win the day,” Bowling said.

The lawmakers might want to copy a page out of the Rapanos decision. One of the Supreme Court justices noted his opinion that, “A wetland may not be considered ‘adjacent to’ remote ‘waters of the United States’ based on a mere hydrologic connection.” That should set some producers’ minds at ease.

“Clean water is important to all of us. NCGA is committed to working with the EPA, the Corps, and other stakeholders to protect America’s water resources,” Bowling said.

Indeed, O’Neill said several Pennsylvania producers have taken umbrage at EPA’s public suggestion that those who oppose WOTUS are opposed to clean water. He noted that Pennsylvania is the nation’s top no-till state and that farmers have taken enormous and expensive pains to reduce runoff and assure clean water.

What to do

A spokesman for the Farmers Union said they want to see the language that will keep WOTUS from reaching far upstream and covering intermittent streams or ponds.

Farmers Union said it expects there will be changes and clarifications before the end of the Obama Administration – changes that might make WOTUS more palatable to growers.

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Farm Bureau experts said that, if there is any doubt, a farmer should consult a lawyer with experience in this area. However, they noted several options that a farmer has to be sure the operation complies with the CWA.

First, request a Jurisdictional Determination (JD) from the Corps of Engineers to definitively identify WOTUS on your land. Or, you can choose to assume those streams or ponds are WOTUS and avoid anything that might result in a discharge to those water features.

Seek clarification from the Corps about whether your dirt-moving activities in or near WOTUS qualify for one of Section 404 permitting exemptions.

Lastly, apply for a Section 402 or Section 404 permit if there is any chance that your operation might do something that will result in a regulated discharge.

To date, the Corps has interpreted Section 404 exemptions very narrowly. Even activities that would improve site drainage or break up soil hardpans to encourage root growth are outside the exemption. Again, there are exceptions – however, the newer the farm, the less likely the farmer is to get excused.

“The quickest way to resolve the issue is legislation,” O’Neill said. “Going through the courts always takes a long time.”

U.S. Senator Ben Sasse, an outspoken critic of WOTUS and a member of the Senate Ag Committee, said, “WOTUS is now on borrowed time. This (court) ruling is a victory for common-sense and the rule of law. The EPA isn’t a super-legislature and this ruling brings us one step closer to having the American people – not unelected bureaucrats – setting important agriculture and conservation policy.”

“We have been engaged with EPA from the beginning and our door remains open. Let’s work together on a better rule that will give farmers the certainty they need while protecting America’s water resources,” Bowling said.

Time, more court decisions, and likely more legislation will tell if they are correct.