WOTUS Pitfalls Loom

Courts Consider 'Good Faith Efforts'

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Work on land with water running through it can cause problems that last much longer than the time it took to do the work. (DTN file photo by Chris Clayton)

OMAHA (DTN) -- As the waters of the United States rule remains tied up in federal court, a Houston-based attorney who handles Clean Water Act cases said Wednesday farmers should remain vigilant about whether work they do on the land is exempt from the law.

Sharon Marie Mattox, an attorney with Mattox Law Firm, said during a webinar she was unwilling to look into the crystal ball on how the legal battle will play out.

Some 30 states and many agriculture and other industry groups have sued the U.S. Environmental Protection Agency in federal court, claiming the new rule represents an unconstitutional expansion of power in the Clean Water Act. Though there are questions about which court has jurisdiction in the cases, the U.S. Circuit Court of Appeals for the Sixth District in Cincinnati has ruled it has jurisdiction to hear the case, likely to extend on into 2017.

The legal battles will continue for years to come, Mattox said, even if a federal court renders a decision one way or another on a large national lawsuit involving many states and industries against the rule.

"We will have years and years of fight based on the Commerce Clause (to the U.S. Constitution)," she said. "We have a huge regulatory program with high costs to comply. But it is ill-defined and there are not enough federal resources to apply it fairly.

"One of the fixes would be to pull this back to some easily determined federal jurisdiction."

Mattox said there are a number of issues farmers and ranchers should consider when it comes to Clean Water Act considerations on the land.

Juries who hear CWA cases, she said, often consider "good faith" efforts made by landowners to be in compliance with the law.

In most CWA court cases, Mattox said, the U.S. Environmental Protection Agency takes a hard line when the question of whether property owners did everything they could to comply.

"When you settle, unless you roll over and put your paws in the air EPA will consider it in bad faith," she said.

Before farmers and ranchers conduct projects on the land where potential waters of the U.S. may be involved, Mattox said it is good to seek out advice from professional consultants. They can provide analyses on questions of significant nexus to navigable waters.

"The clients I have fear wetlands may be connected," she said. "If you can get two opinions (on a particular question of jurisdiction) at least you have a good-faith effort on file. Most federal courts would be receptive of good faith."

When faced with potential Clean Water Act violations, Mattox said it is important for landowners not to ignore the problem, seek experienced advice from consultants and request a hearing with the federal government. What's more, she said early settlements may be the best business decision.

Although many farmers are ranchers are reluctant to allow officials from EPA or the U.S. Army Corps of Engineers onto their property, Mattox said it would help to allow the agencies to have a site visit. In addition, if the government alleges a farmer has violated the CWA property owners should request copies of all evidence relied on by the government in bringing such allegations.

Mattox said landowners should file administrative appeals on their cases, as it typically takes only 90 days to resolve.

Mattox said in many cases brought against farmers and other landowners where settlements have been reached, EPA and the Corps of Engineers often are "unwilling to tell you exactly what they want because they are willing to sue you for everything."

In cases involving settlement, she said EPA officials often closely monitor work done to bring land into compliance.

"You can reach a situation where settlement is impossible because EPA always is asking for more," Mattox said.

Most regulatory activity involving farmers and ranchers comes, Mattox said, based on questions of agriculture exemptions. One recent area of concern, she said, is in Section 404 of the CWA dealing with a recapture provision. This section deals with bringing land previously in agriculture production, back into production.

Usually problems start, Mattox said, when EPA or the Corps of Engineers bring enforcement actions against property owners. Those usually are brought on as a result of citizen lawsuits, when property owners ask for verification of ag exemptions on their land, or if when landowners ask questions about existing CWA permits.

Complaints typically are lodged by neighbors, competitors or non-governmental organizations (NGOs), Mattox said.

"The rigor of enforcement often is determined by a landowner's proximity to regulatory offices," she said, "and proximity to activity in a public setting."

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

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Todd Neeley