While environmentalists have praised the comprehensive new Waters of the U.S. regulations put in place by the U.S. Environmental Protection Agency, farmers and others oppose the regulations. (Photo U.S, Chamber of Commerce)

Despite lawsuits and pending Congressional legislation to rescind it, the U.S. Environmental Protection Agency’s (EPA) controversial new Waters of the U.S. (WOTUS) rule officially took effect Aug. 28 in Illinois and most of the rest of the country.

While immediate enforcement is not anticipated and additional legal action could still halt implementation of the act nationwide, both proponents and opponents say farmers, businesses and landowners should consider now how the new rule could affect their property and operations.

Alternately known as the Clean Water Rule, the WOTUS regulation was developed to precisely define the bodies of water covered under the federal Clean Water Act (CWA). The act was primarily designed to protect large, navigable waterways such as rivers and lakes. The new rule effectively expands the “protected waters” covered under the act, to include tributaries, streams and wetlands. It comes as the result of a 2006 Supreme Court ruling, in which the EPA’s authority over small bodies of water was found to be insufficiently defined.

Hailed by environmentalists as the most significant regulation of its type in decades, the rules was intended to help protect the drinking water of up to 117 million American, as well as wetlands needed for wildlife habitat and protection against storm-related erosion.

However, critics, led by the American Farm Bureau Federation, contends it will place an unreasonable burden on landowners – especially farmers – who now must determine whether the streams, ponds, ditches and other small bodies of water on their land fall under the rule, and then determine whether they will need to obtain federal permits for routine agricultural procedures that could potentially or harm waterways.

It requires landowners and businesses obtain federal permits before taking any action that could pollute or destroy an waterway with a “direct and significant” connection to a larger waterway downstream, that are already protected under the act.  In some cases, farmers might be prohibited conducting some necessary agricultural activities altogether, the organization fears.

The rule was jointly developed by EPA and U.S. Army Corps of Engineers, which will both have a role in enforcing it.

The EPA promises compliance guidance for the rule is coming. In the meantime, debate over the scope of this is heating up and critics are renewing efforts to fight it.

They note the EPA and Corp of Engineers are authorized to levy potentially substantial fines for CWA infractions.

subhed: Protected waters

The WOTUS “focuses on streams, not ditches,” according to the EPA’s Clean Water Act webpage (http://tinyurl.com/EPACleanWaterRulePage). However, the Farm Bureau disagrees, saying the rule potentially could cover virtually any small body of water that is physically connected to a navigable river – including, in at least some cases, drainage ditches and rain-fed temporary ponds.

Easily identified as protected waters under the rule, the Illinois Farm Bureau (IFB) notes, are:

• Waters (including wetlands) that cross state lines (interstate waters) or that can be used for navigation (navigable waters);
• Rivers, streams and creeks that flow directly into any navigable or interstate waters;
• Impoundments of rivers, streams and creeks that flow directly into any navigable or interstate waters; and
• Wetlands directly adjoining any of the above.

Likely to be protected under the rule, according to the IFB are:

• Any other rivers, streams or creeks that flow to another water;
• Ephemeral drains (meaning water flows only after rain) that have a bed (lower area of elevation), banks (areas of higher elevation on each side), and ordinary high water mark (meaning flowing water leaves a mark in the soil or vegetation) and that flow to another water;
• Erosional features (such as gullies, rills and arroyos) if they have a bed, banks and ordinary high water mark and flow to another water;
• Ditches that were dug in or used to divert a river, stream, creek or ephemeral drain;
• Impoundments of any rivers, streams, creeks or ephemeral drains—including farm ponds;
• Wetlands, lakes, ponds, ephemerally ponded areas that are within 100 feet of any river, stream, creek, ephemeral drain, WOTUS ditch or impoundment;
• Wetlands, lakes, ponds and ephemerally ponded areas within 1,500 feet (about one-quarter mile) of any interstate or navigable water;
• Wetlands, lakes, ponds and seasonably ponded areas at least partially within the first 1,500 feet of a known 100-year floodplain of any river, stream, creek, ephemeral drain, WOTUS ditch or impoundment (see FEMA 100-year Flood Zone maps at https://msc.fema.gov/portal or your local water/conservation district); and
• Shallow wetlands often known as prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools, Texas coastal prairie wetlands.

In addition, according to the IFB, a number of waters may be protected if the Corps of Engineers or EPA finds a “significant nexus” to protected downstream waters, including:

• Wetlands, lakes, ponds or ephemerally ponded areas within 4,000 feet (about three-quarter mile) of any river, stream, creek, ephemeral drain, WOTUS-protected ditch or impoundment;  and
• Wetlands, lakes, ponds or ephemerally ponded areas at least partially within the 100-year floodplain of any interstate or navigable waters.

To determine with certainty if they have protected water on their lands, property owners can request a jurisdictional determination (JD) from their local Corps of Engineers office.  The corps is required to process JD requests within 60 days, (although the Farm Bureau contends delays are common).

subhed: Covered activities

The Clean Water Act regulates discharges of pollutants into protected waters. However, the EPA notes that the act provides exemption for common agricultural practices.

The act specifically exempts  established (ongoing) farming, ranching, and forestry activities such as plowing, seeding, cultivating, harvesting (of food, fiber, or forest products), minor drainage, upland soil and water conservation practices, maintenance (but not construction) of drainage ditches, construction and maintenance of irrigation ditches, construction and maintenance of farm or stock ponds, construction and maintenance of farm and forest roads (in accordance with best management practices) and maintenance of structures, such as dams, dikes, and levees.

“Farmers and ranchers may not need a permit for plowing, seeding, cultivating, and harvesting (defined as ‘normal’ farming practices), or for certain other activities like minor drainage, upland soil and water conservation practices, drainage ditch maintenance, construction and maintenance of irrigation ditches, farm/stock ponds, farm/forest roads and maintenance of levees/dams,” the Farm Bureau agrees.

However, the organization cautions that the exemptions can be subject to some conditions – including limitations on the definition of an “established” or “ongoing” farm operation – and the Corps of Engineers tends to interpret the exemptions “very narrowly.”

Should agricultural activities not be covered under the standard exemptions, farmers can still apply for Clean Water Act permits to proceed with specified operations through the EPA’s National Pollutant Discharge Elimination System (NPDES) program.  Mostly commonly required by farmers, according to Farm Bureau, are NPEDS Section 402 permits for the release of pollutants and NPEDS Section 404 permits which are intended to control the dredging or filling of wetlands.

To find out whether specific activities are exempt, federal officials advise farmers to contact their local Corps or Engineers of EPA office.

Subhed: Pending developments

Following official announcement of the rule in the Federal Register on June 29, business groups, agriculture organizations, and attorneys general in about 30 states filed lawsuits (most since consolidated), challenging the rule as an unconstitutional overreach of regulatory authority and seeking to delay implementation. On August 27, a U.S. District Court Judge in North Dakota issued a preliminary injunction preventing the rule from taking effect in 13 states – but Illinois is not among them.

Legislation (The Federal Water Quality Protection Act, S 1140) which would require the EPA to withdraw and rewrite the rule, is currently pending in the Senate. The House has already passed a similar bill (The Regulatory Integrity Protection Act, H.R. 1732).

—  New Clean Water Rule poses regulatory concerns for farmers  —