WOTUS Talking Points
INTRODUCTION:
Congress passed the Clean Water Act in 1972, with the goal of improving water quality across
the nation. To achieve that goal, the CWA established a system of cooperative federalism that
preserves primary state authority over land and water uses, but prohibits certain “discharges” into
“navigable waters” from a “point source” (i.e., a pipe or other conveyance) unless authorized by
federal permit. The law says that “navigable waters” are “waters of the United States.” Over the
years, the U.S. Supreme Court has established that this includes interstate waters, plus waters
that are navigable, wetlands adjacent to navigable waters and other waters with a substantial
connection to navigable waters. State and local governments have jurisdiction over smaller,
more remote waters, such as many ponds and isolated wetlands.
Two sections of the law have particular impacts on agriculture. Section 404 allows the U.S.
Corps of Engineers to issue permits for discharges of “dredge and fill” material into navigable
waters. Section 402 establishes the National Pollutant Discharge Elimination System (NPDES)
permitting program, in which EPA or states (with EPA oversight) can issue permits for
discharges of other pollutants into navigable waters.
GENERAL/SCOPE:
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The EPA and U.S. Army Corps of Engineers are aggressively, inappropriately trying to
expand their regulatory reach.
The proposed rule, on its surface, appears to ignore the two most recent U.S. Supreme
Court decisions (SWANCC in 2001 and Rapanos in 2006). Both cases told EPA that it
had exceeded its statutory authority to regulate areas never intended by Congress.
State and local governments already oversee small, remote and isolated waters.
The “waters of the U.S.” proposed rule is an end-run around Congress and two Supreme
Court rulings.
The proposed rule would significantly expand the scope of “navigable waters” subject to
Clean Water Act jurisdiction by regulating small and remote “waters”, many of which are
not even wet or considered “waters” under any common understanding of that word.
Congress, not federal agencies, enacts laws. When Congress passed the Clean Water
Act, it clearly wrote the law to apply to navigable waters. Is a small ditch navigable? Is
a stock pond navigable? Is a puddle in your backyard navigable?
Coverage includes areas that aren’t even wet most of the time, such as low spots that hold
water only after a heavy rainfall.
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The proposal is based on a skewed interpretation of scientific studies, viewing all
hydrologic connections as creating a “significant nexus.” The report is referred to as the
Connectivity Report.
IMPACTS:
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Because of the proposed rule, farmers and other landowners will face a tremendous
roadblock to ordinary land-use activities, from building a fence to spraying or pulling
weeds and insect control.
The rule would impact whether landowners could build fences, apply fertilizer, control
weeds, mow grass, prune trees,,,,and so on and so on. The list continues on.
There is no legal right to a Clean Water Act discharge permit. EPA would have ultimate
control to deny a permit…and a farmer’s ability to farm.
Farmers cannot wait for a federal permit to protect crops form pests and weeds. Permits
can take months, if they are ever approved. Landowners face fines of up to $37,500 per
violation, per day for undertaking many activities in a newly designated “water of the
U.S.” without getting a permit.
The proposed rule is nothing short of a license for EPA, the Corps to micromanage land
use across the country. The rule would also bring NRCS into a regulatory role because
practices would have to meet NRCS criteria.
By linking exemptions to NRCS standards, EPA also as cleverly created a “Trojan
Horse” of sorts. NRCS standards can be changed without public notice, with limited or
no public input; the exemptions can be withdrawn at any time. As a result, the agency
has effectively undermined the law Congress wrote to grant farmers exemptions from
Section 404 for normal, ongoing activities.
The proposed rule will impact more than farming. Home building, energy production
and other land uses would also be affected.
EPA and the Corps have said the WOTUS rule provides clarity and certainty. The only
thing that is clear and certain is that, under this rule, it will be more difficult to farm,
build homes or make changes to the land, even if the changes would benefit the
environment.
EXEMPTIONS:
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The exemptions EPA and USDA claim will protect farmers only apply to long-standing
operations (continuous operation at the location since 1977), not new or expanded farms.
The exemptions don’t cover weed control, fertilizer use and other common farm
practices. The agricultural activities listed as being exempt only pertain to the Section
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404 “dredge and fill” permit program. They provide absolutely no protection from
potential liability and Section 402 NPDES permit requirements for discharges of other
“pollutants.” This is critical because with the expansion of jurisdiction proposed by EPA,
every day weed control, fertilizer applications or any number of other common farm
activities may well trigger Clean Water Act liability and Section 402 permit
requirements. Moreover, with this expanded jurisdiction, the possibility of citizen
lawsuits is amplified and even if EPA says it will not require a permit. It allows
environmental activists an opportunity to go to Federal court and sue for new or different
standards.
The exemptions have existed for years, but have been narrowed by EPA guidance issued
with the proposed rule. These exemptions were granted by Congress for normal activities
at ongoing operations. EPA has created nothing new.
Farmers cannot depend on exemptions. Just as it did with the new guidance, EPA could
change or take away the exemptions at any time.
The exemptions do not change the fact that EPA and the Corps are expanding their
control over more and more private land.
These narrow exemptions will not protect farmers from new restrictions (or prohibitions)
on farming practices that will arise from the establishment of water quality standards and
total maximum daily loads for the ditches, ephemeral streams and other features EPA
now plans to sweep into federal jurisdiction.
WHAT CAN YOU DO?
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Strongly oppose the rule change. Explain how the rule would affect you, and others.
Many people simply do not realize what is in the rule, or how it would affect them.
Send comments to the EPA. Comments can be submitted electronically at
Regulations.gov. The deadline for submitting comments is October 20, 2014. Search for
EPA Docket No: EPA-HQ-OW-2011-0880
Spread the word! Tell fellow farmers and friends about the rule and ask them to submit
comments too. Make sure your voice is heard.