LINCOLN, Neb. (DTN) -- Missouri cattleman Garrett Hawkins said he knows the new waters of the U.S. rule includes traditional agriculture exemptions, but the concern is about myriad exceptions that create doubt about what's in and what's out.
The Biden administration finalized a new WOTUS rule in December that already faces legal challenges. On Wednesday, the House Committee on Transportation and Infrastructure's Subcommittee on Water Resources and Environment held what is the first congressional hearing since the rule's release at the end of December.
Hawkins, an Appleton City, Missouri, rancher who is president of the Missouri Farm Bureau, told the subcommittee the latest rule has added to agriculture's uncertainty about jurisdictional waters.
"I would say if I could use one word to describe how my fellow farmers and ranchers feel: overwhelmed," Hawkins said.
"We feel like this new rule essentially shifts the burden of proof back to us rather than the agencies. It's almost the notion that we're guilty until proven innocent and while folks talk about the exemptions that agriculture has had, the reality is I wouldn't be testifying today if those long-standing exemptions were tight enough that we weren't having farmers embroiled in litigation, not just in Missouri but all around the country."
Agriculture and other industry interests have unified in their opposition to the new WOTUS definition, primarily because it makes it difficult for farmers and ranchers to know how to interpret whether or not their own individual land features are jurisdictional.
Primarily, ag interests oppose the new rule for its use of the significant-nexus standard. The standard allows the EPA and U.S. Army Corps of Engineers to claim authority over small water bodies based on the theory they are in some way connected to larger navigable waters.
Susan Parker Bodine, an attorney with Earth and Water Law LLC, and former chief counsel for the Senate Environment and Public Works Committee, said the rule's language gives the EPA and the Corps the ability to broadly interpret jurisdictional lines.
"When landowners, farmers, municipalities later challenge that overreach, the agencies will tell the court that they get deference because they're interpreting their own regulation," Bodine told the subcommittee.
"It is clear that the rule was designed to evade judicial review because most of the detail on how it's implemented is in the preamble and in these very lengthy, dense technical background documents."
WOTUS BROAD REACH
The new WOTUS rule, she said, allows EPA and the Corps to claim control over any tributary, adjacent wetland or other lakes ponds, stream or wetland if they determine that it can significantly affect a navigable or interstate water or territorial sea, including by providing "habitat and food" resources.
Bodine gave a number of examples of how this works.
For aquatic species located in one of those waters, she said the preamble to the rule uses connections between migrating salmon and the upper reaches of a tributary as an example of where authority can be claimed.
"That's very disingenuous," she said.
"If you look at the technical background document you can see what Corps and EPA really mean is that they can claim federal control over water and wetlands because an animal can carry insects or algae on feathers and fur or in their intestines and travel between an isolated water and a navigable water. The agencies call this dispersal. I cannot see how the Supreme Court would ever uphold that as a test for establishing federal control over land and water."
Bodine presented another example of how far the new WOTUS attempts to go in claiming authority.
The rule also embraces a concept that erosional features created by runoff can be considered as regulated tributaries. In addition, Bodine said groundwater aquifers can create connections that would support jurisdiction over isolated waters and flows from "back-to-back rainstorms" can be considered to be "relatively permanent" water.
Bodine said she believes the agencies have decided to expand the "relatively permanent" standard "because they're worried" the Supreme Court will issue a ruling in the Sackett case this year that would eliminate the significant-nexus test. (See https://www.dtnpf.com/…)
"I think that's ludicrous. These interpretations will have enormous economic consequences for farmers, landowners, municipalities. But the Biden administration rule does not even include many of the exclusions that were found in the 2015 WOTUS rule that included similar expansion to federal authority. Just because wetlands and water supplies are important does not mean the Congress gave EPA and the Corps of Engineers authority to regulate all water in a nation under the Clean Water Act."
PROFESSOR DEFENDS RULE
Dave Owen, professor of law and faculty director of scholarly publications at the University of California College of the Law in San Francisco, said the new WOTUS rule was an improvement from the Trump administration's Navigable Waters Protection Rule.
"Through years of research scientists have concluded that we cannot have water quality in our rivers, lakes and seas if we do not protect the smaller streams and wetlands that feed those rivers, lakes and seas," Owen said.
"Those small streams and wetlands are as important to larger waterways as our capillaries are to our pulmonary system, or as a tree's leaves and roots are to its trunk. Despite that importance, the 2020 rule would have eliminated Clean Water Act protection for most of the nation's small wetlands and streams. The 2022 rule restores those protections, and it does so by establishing familiar standards to date back to 1975 and have been elaborated in detail since 1986. This will improve water quality across the nation."
Owen said the new WOTUS rule provides important powers to the states when it comes to water quality. In Clean Water Act section 401, which requires federal permit applicants to obtain state water quality certification, Owen said states have the ability to condition permits issued by the federal government to protect state water quality.
"That is a huge benefit that will be taken away if the scope of Clean Water Act jurisdiction shrinks," he said.
"Under any plausible reading of that text (the new rule), it would include aquatic features that have water and that are permanently present. That includes streams. That includes wetlands. That includes ponds, even if they don't have a permanent connection to some larger water body. The new rule respects that text. And, in contrast, the previous rule mangled statutory text by creating some strange distinctions between waters that are covered and waters that are not."
Hawkins said farmers in his state and across the country are working to expand conservation efforts. That includes investing their own money in certain projects as part of cost-share agreements.
The new WOTUS rule, he said, has created uncertainty as to how much farmers should invest in those projects because of the added costs in seeking expert help in making sure those projects aren't in violation of the Clean Water Act.
"They have every right to be concerned about future investment in their farming operations and have to second guess whether putting in place that conservation practice for building that structure or investing in that building is worth it," Hawkins said, "if you're going to be embroiled in red tape and a potentially years-long process."
Hawkins said every farmer and rancher has to think about the features they have on their property and question whether they are potentially jurisdictional.
"As we talk about features, truly what comes back to my mind is uncertainty," he said.
"Now, as I hear from our farmers as they have questions, because of the length and the scope of this rule, when they read terms like similarly situated in the region, material influence, when they say, 'what do I need to do?' I can't in good faith ask them to go to one of our six district Corps offices in the state without first consulting with legal counsel or an environmental expert, to walk them through the potential ramifications and what happens as they look at continuing to invest in their property and ultimately put more conservation on the ground."
Read more on DTN:
"Republicans in Congress Keep up Pressure on EPA WOTUS Rule," https://www.dtnpf.com/…
"25 Governors Ask Biden for WOTUS Delay," https://www.dtnpf.com/…
"Texas, Ag Groups Sue EPA on WOTUS Rule," https://www.dtnpf.com/…
Todd Neeley can be reached at firstname.lastname@example.org
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