Time to take a moment and reach all the way back to last summer. If you can do it, you should remember that the EPA had proposed a new regulatory rule under the Clean Water Act that would allegedly clean up and clearly define “waters of the United States.” As I explained in an early article about this topic, the definition has gotten a little fuzzy and muddled up as a result of a handful of Supreme Court opinions on the topic. After seeing some of the proposed changes and proposed rule, many people – especially American Farm Bureau – were highly critical because it was thought that the rule would vastly expand bodies of water coming under the jurisdiction of the CWA, including things like drainage ditches on farms.
There was quite a bit of back and forth bickering between the EPA, American Farm Bureau, and others saying that the other side was being misleading and attempting to scare the public. (In other words, business as usual in Washington DC.)
After (literally) fighting about it for years, yesterday the EPA finally issued the new final rule. As you can imagine, all heck broke out. Let’s discuss what each side has to say about this…
The Rule
The full text of the new rule, which you can find here, is only 297 pages long. You know, in case you wanted to peruse through it and see if you can figure out this clear definition of “waters of the United States.” Admittedly, most of the pages (I read…and scanned…) are the agencies’ comments and some explanation of the Supreme Court’s recent and significant rulings about the definition.
If you did dig down into that document, you would eventually find the “summary” of the rule on page 77. There, the EPA clarifies that its definition of “waters of the United States is:
The agencies define “waters of the United States” in paragraph (a) of the rule for all sections of the CWA to include the traditional navigable waters (a)(1), interstate waters (a)(2), the territorial seas (a)(3), impoundments of jurisdictional waters (a)(4), covered tributaries (a)(5), and covered adjacent waters (a)(6). Waters in these categories are jurisdictional “waters of the United States” by rule – no additional analysis is required.
The EPA then assures us that everything that was previously excluded is still excluded. And the rule is meant to make things completely clear with no gray areas – either the water is within the jurisdiction of CWA or it isn’t.
Well, you know, except for this:
In addition to waters that are categorically “waters of the United States” or categorically excluded under paragraphs (a) and (b), the rule identifies certain waters that can be “waters of the United States” only where a case-specific determination has found a significant nexus between the water and traditional navigable waters, interstate waters, or the territorial seas. First, paragraph (a)(7) of the rule specifies five types of waters (Prairie potholes, Delmarva and Carolina bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands) that the agencies have determined to be “similarly situated,” and thus are to be considered in combination in a significant nexus analysis. Second, paragraph (a)(8) specifies that waters located within the 100-year floodplain of a traditional navigable water, interstate water, or the territorial seas, and waters located within 4,000 feet from the high tide line or the ordinary high water mark of traditional navigable waters, interstate waters, the territorial seas, impoundments, or covered tributaries may be found to have a significant nexus on a case-specific basis, but the agencies have not made a determination that the waters are “similarly situated.”
So we have two big exceptions that need to be evaluated on a case-by-case basis. Still clear?
The Farm Critics
One of the loudest voices against the new rule was AFBF. As mentioned, the organization launched a campaign, cleverly called #DitchTheRule, to spear head its resistance to the new rule and encourage farmers to comment during the open comment period. Hence, the reason most of us heard about the proposed rule last summer.
As you can imagine, AFBF was not exactly happy about the final rule. Quite frankly, as AFBF President Bob Stallman indicated, the organization was skeptical that the EPA had taken farmers’ concerns about it into consideration to revise the rule and make it more agriculture-friendly.
In a statement released on Wednesday, Stallman stated:
We are undertaking a thorough analysis of the final WOTUS rule to determine whether the Environmental Protection Agency listened to the substantive comments farmers and ranchers submitted during the comment period. Based on EPA’s aggressive advocacy campaign in support of its original proposed rule – and the agency’s numerous misstatements about the content and impact of that proposal – we find little comfort in the agency’s assurances that our concerns have been addressed in any meaningful way.
Stallman went on to say that he was disappointed with the way the EPA handled the comment period, by engaging in a campaign in favor of the rule, instead of having an open and honest discussion. AFBF is still reviewing the rule and has not commented on it yet.
The White House Response
According to Politico, President Obama is moving forward on this rule because he wants to leave office with a “green” legacy. He released a statement after the EPA released its final version of the regulation. In it he stated:
This rule will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable. My administration has made historic commitments to clean water, from restoring iconic watersheds like the Chesapeake Bay and the Great Lakes to preserving more than a thousand miles of rivers and other waters for future generations. With today’s rule, we take another step towards protecting the waters that belong to all of us.
But the interesting thing that was said by the White House about this issue wasn’t included in the statement. Instead, it came from senior White House adviser Brian Deese while talking to reporters during a conference call. Deese said (Politico):
The only people with reason to oppose the rule are polluters who threaten our clean water.
Really?
Farmers aren’t concerned about this new rule because we’re just sitting in our fields dumping ridiculous amounts of harmful chemicals into our drinking water and having a good time over it. We’re concerned because when we need to apply fertilizer to our crops, we don’t have 3 months to apply for a permit from the EPA and just hope it gets taken care of. We also don’t have time for the court system to debate the definition of “water” – our crops will be dead by the time they figure that out, and our farms might just die with it.
What we want is to feel confident that we can go about our business farming without the EPA ringing our doorbell and slapping us with a big fine. Until we feel reassured, we’re going to be concerned about this rule and we’re going to ask questions.
So, Do Farmers Need to Worry?
Back when the rule was first proposed and the period for public comment was open, there seemed to be a lot of confusion about what water the EPA hoped to bring under the CWA and what types of activities would be exempt.
The EPA Administrator McCarthy acknowledged that the proposed rule was somewhat confusing and claims the agency attempted to make things clear. As it stands currently, the CWA exempts normal farm activities, such as plowing, seeding and the movement of livestock, among other things. (ABC News) As stated on a fact sheet released by the EPA, the agency claims the rule preserves the original agricultural exemptions.
You can read the full fact sheet here. McCarthy tried to assure farmers that agriculture still does not require any permits.
So…We’re All Good; Right?
Not quite yet.
Remember those two exceptions to the rule? Well, that might cause some problems. The exceptions include: “Prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands.” As the Wall Street Journal pointed out, those were some of the biggest concerns that people had with the proposed rule, including the prairie potholes. This is that gray fuzzy area that we were all hoping to avoid. If you’re a farmer and your land is near one of those shallow wetlands, can you continue to farm without a permit? Well, you probably need to wait until the EPA makes a decision.
Oh, and if you’re looking for a few other reasons that there might be a concern, check this out. Senator John Boozeman from Arkansas was asked about his opposition and provided the following examples of problems he has with the final rule:
•”EPA or the Corps will look at aerial photos or the surrounding area to guess whether a rice pond was constructed in a stream or wetland, even if that construction took place 100 years ago, so they may still regulate rice ponds.”
• “The final rule does not exempt ditches used by agriculture to move irrigation water around. It only exempts ditches used to drain rainwater runoff. So the channels used to drain rice ponds may be jurisdictional.”
• “Even land that proves to not be jurisdictional will now undergo delays and analysis (for a jurisdictional determination) as landowners seek federal jurisdictional determinations on a much more frequent basis, which increases costs and discourages traditional farming activities.”
• When the “EPA says this will not affect farming, the agency is relying on some creative word-play (to put it generously) to try to back that up. EPA may ultimately realize that it can’t regulate a particular ditch on a farmer’s land, but only after the farmer has jumped through a number of new hoops to get that clearance.”
Who’s right? I wish I could answer that question, but the CWA is complicated and even the Supreme Court has struggled with the definition of “waters of the United States.” I’m sure there will be legal battles ahead. I’m definitely interested in seeing the reaction of various players as they each have time to read through the rule and render some analysis. I wouldn’t dare make any predictions about whether these fears will come to light or whether the EPA is being honest in its answers that agriculture won’t be effected, but only time will tell.
Unfortunately, we don’t have a choice now but to wait.
