Clean Water Act
WOTUS: Final Rule issued by EPA and ACOE
Issued on June 29th, the Environmental Protection Agency (EPA) and Army Corps of Engineers (ACOE) released their Final Rule clarifying and redefining "Waters of the United States" (WOTUS) that are within federal jurisdiction under the Clean Water Act of 1972. This Final Rule will went into effect on August 28th.
As you may recall, Farm Bureau opposed the draft language of the Rule and mounted a campaign to "Ditch the Rule" including a website and videos. Thousands of comment letters were submitted from across the country by farmers and ranchers critical of the proposed rule and its potential impacts.
The Final Rule makes significant changes to the definition of tributary and adjacent waters to tributaries; the definition of "tributary" has been broadened to include landscape features that may not even be visible to the human eye, or that existed historically but are no longer present. Additionally, enumerated regional features and waters in a 100-year flood plain or within 4000 feet of a tributary of U.S. waters are now under federal jurisdiction.
A few examples of the language contained in the final rule:
- Ditches are defined as tributaries (Final Rule at 204) and the agencies say they "in many instances can meet the definition of tributary" (Final Rule at 97). Ephemeral ditches (that flow only when it rains) are excluded only if they were not "excavated in" a tributary and are not "relocated tributaries." Because the exclusion is tied to determining the existence of historic ephemeral tributaries, it will be impossible for landowners to know which ditches are excluded.
- All waters "adjacent" to other WOTUS, including those invisible tributaries, are automatically regulated. Adjacent/neighboring is defined based on several possible distance thresholds, but there are many steps and layers in determining whether a feature is within these distances. The trickiest part will be determining whether "any water" on private lands is within the 100-year floodplain of, and not more than 1,500 feet from, any tributary-especially since tributaries might not be visible on the land.
- There is no need for the presence of an actual bed, bank and observed high water mark, but only the "presence of physical indicators of a bed and banks and ordinary high water mark" (Final Rule at 204). The agencies can utilize "remote sensing or mapping information" and other "desktop tools." The final rule also allows the agencies to identify tributaries based entirely on past conditions rather than current conditions.
- The rule sets forth a number of exclusions (like farm ponds), but most apply only to features "created in dry land." But "dry land" doesn't actually mean land that looks dry. Instead, only the agencies will have the power to decide what is "water" and what is "dry land."
The Final Rule goes well beyond a simple clarification of WOTUS as both EPA and ACOE have claimed in prior communications with the agricultural sector. Vocal opposition has already been expressed by nearly every agricultural organization nationwide, including Farm Bureau. Additionally, the House of Representatives has passed legislation to stop implementation of the Final Rule; similar legislation is pending action in the Senate.
AFBF files suit against implementation of WOTUS Final Rule
The American Farm Bureau Federation and 11 other agricultural and industry groups asked a federal court to vacate the controversial new rule redefining the scope of federal jurisdiction under the Clean Water Act. The complaint, filed in federal district court in Texas, claims the new rule grants EPA and the U.S. Army Corps of Engineers broad control over land use far beyond what Congress authorized in the Clean Water Act. The lawsuit also claims vagueness and over-breadth of the rule violate the U.S. Constitution. The groups also challenged EPA's aggressive grassroots advocacy campaign during the comment period, which reflected a closed mind to concerns expressed by farmers and others.
EPA and the Corps first proposed the rule in March 2014, promising clarity and certainty to farmers, ranchers, builders and other affected businesses and landowners. "Instead we have a final rule that exceeds the agencies' legal authority and fails to provide the clarity that was promised," AFBF General Counsel Ellen Steen said. "AFBF filed this lawsuit to do everything we can to protect the interests of farmers and ranchers, but litigation is not a quick or perfect fix. It is long, cumbersome and expensive, and it leaves farmers and others facing immediate harm and uncertainty under this rule."
While AFBF and others turn to the courts, a bill currently before the Senate, if passed, would require EPA and the Corps to abandon the rule and conduct a new rulemaking. "Lawsuit or no lawsuit, we need Congress to act," AFBF President Bob Stallman said. "We need legislation that requires an honest rulemaking from EPA. EPA water regulations must protect water quality without bulldozing the rights of farmers and others whose livelihoods depend on their ability to work the land."
According to the AFBF complaint, "the Agencies are determined to exert jurisdiction over a staggering range of dry land and water features-whether large or small, permanent, intermittent or ephemeral, flowing or stagnant, natural or manmade, interstate or intrastate." The "opaque and unwieldy" rule "leaves the identification of jurisdictional waters so vague and uncertain that Plaintiffs and their members cannot determine whether and when the most basic activities undertaken on their land will subject them to drastic criminal and civil penalties under the (Clean Water Act)."
The AFBF lawsuit follows four similar suits filed by officials representing 27 states, all within two days of the rule's publication on June 29. A group of nine states-West Virginia, Georgia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah and Wisconsin-has asked a federal district court in Georgia for a preliminary injunction to stop implementation of the rule while the lawsuit is resolved. Ohio and Michigan have a separate suit in Ohio also seeking preliminary relief. "We appreciate the leadership and dedication of all the states that have challenged the rule, and we fully support their efforts," Steen said.
AFBF's co-plaintiffs are the American Petroleum Institute, American Road and Transportation Builders, Leading Builders of America, National Alliance of Forest Owners, National Association of Home Builders, National Association of Manufacturers, National Cattlemen's Beef Association, National Corn Growers Association, National Mining Association, National Pork Producers Council and Public Lands Council.
More information on Waters of the U.S. rule here.