WOTUS Fine Print

Ag Group Wants Congressional Action to Stop Water Rule

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Farm groups fear the waters of the United States rule would give EPA authority to regulate tributaries, streams and other intermittent water bodies on U.S. farms and ranches. (DTN/The Progressive Farmer file photo by Jim Patrico)

OMAHA (DTN) -- Lawsuits may be the last option for agriculture to stop the waters of the United States rule once it takes effect, but leaders from the American Farm Bureau Federation are counting on Congress to stop the rule before litigation becomes necessary.

Farm Bureau leaders said Thursday they understand farmers will face new Clean Water Act enforcement pressures starting far sooner than any court could stop a final rule.

"Think of the Federal Register as a giant, fat magical wand," Ellen Steen, general counsel for the American Farm Bureau Federation, said during a news conference. "Land features that are already farmed suddenly become waters of the U.S., and it triggers the need for permits, automatic liability and tens of thousands of dollars of fines per day, per violation. It's a big cloud of risk... Unless something happens to block it, it's very likely we'll be filing suit."

It is difficult to obtain preliminary injunctions in court, she said, which would in this case be designed to temporarily stop EPA enforcement of the rule.

"It is a long shot," Steen said. "I wouldn't bank on it... When this rule goes into effect, lawsuits may not come in the first week or the second week, but the enforcement of this law is coming to the countryside, and when it comes, life is going to change for many farmers and ranchers."

Farm Bureau and other ag groups have criticized the final rule for being far more restrictive than what was originally proposed.

AFBF Senior Director of Regulatory Relations Don Parrish said there is hope more members of the U.S. Senate will come on board to block the rule. Many senators were waiting to see the final rule before deciding to support legislation to stop it.

"We're going to do our best to push to 67 (veto-proof votes) or as near to the top as we can," he said.

THE FINE PRINT

The Farm Bureau released a detailed analysis Thursday pointing to a number of issues that should concern farmers and ranchers.

First, the final rule says waters within 1,500 feet of tributaries with bed, banks and ordinary high-water marks in 100-year floodplains are categorically jurisdictional. Waters within 4,000 feet, or about three-fourths of a mile, of tributaries are subject to Clean Water Act determinations.

When it comes to isolated features, Parrish said although EPA includes distances in an attempt to be more specific, the rule still is not clear.

"The distance thresholds make bright lines less than clear," Parrish said. "The vast majority of features are located within 4,000 feet, giving EPA effectively power to regulate all water."

EPA declines to give a definition of dry land in the final rule, leaving wide open the possibility water doesn't need to be present.

"However, it is important to note a 'water of the United States' is not considered 'dry land' just because it lacks water at a given time," the rule reads. "Similarly, an area remains 'dry land' even if it is wet after a rainfall event. The agencies received comments suggesting that the final rule provide a definition of 'dry land' as it relates to the exclusion for storm water control features. The agencies considered the request and determined that there was no agreed-upon definition given geographic and regional variability. The agencies concluded that further clarity on this issue can be provided during implementation."

PREVIOUS EXEMPTIONS

EPA has said all previous agriculture exemptions remain in place. Critics of production agriculture point to those exemptions in the Clean Water Act to argue farm groups are blowing the rule out of proportion. Craig Cox, senior vice president for agriculture and natural resources at Environmental Working Group, dismissed the idea that the broader definition of waters of the U.S. would suddenly have EPA or the Corps combing over every farm looking for ditches to cite.

"That's just nonsensical. There is broad exemption in the Clean Water Act for storm water runoff from ag lands," Cox said. "What difference does it make if the stream is jurisdictional or not if surface runoff from ag lands is not subject to any Clean Water Act authority? What's the difference? Clean Water Act jurisdiction would, I hope, protect the stream itself from being dredged, filed or straightened without a permit."

Still, Farm Bureau points out in its analysis that there is no Clean Water Act exemption for the application of fertilizer or products to protect crops from pests or disease in waters of the U.S. Thus, farmers could be forced to get discharge permits.

Farm Bureau said it continues to have concerns the final rule could harm farmers who have not been farming prior to 1977. That's because the farming exemption applies only to moving dirt and not to applying fertilizer and other crop protection products. Moreover, the exemption only applies to operations that have been ongoing since 1977. During a June 3 meeting with ag stakeholders in Washington, D.C., EPA officials stated farmers who started farming after 1977 without section 404 permits in wetlands or ephemeral storm water paths would not be considered established and in violation of the CWA.

"Under EPA's interpretation of the agricultural exemptions, many farmers will not qualify for an exemption and will face permitting requirements and potentially devastating enforcement liability as a result of this rule," AFBF said in its analysis.

Read the analysis here: http://tinyurl.com/…

DTN Ag Policy Editor Chris Clayton contributed to this article.

Todd Neeley can be reached at todd.neeley@dtn.com

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(CC/AG)

Todd Neeley