The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) finalized a rule significantly expanding the definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA). This regulation expands federal authority beyond the limits approved by Congress and affirmed by the U.S. Supreme Court; the impact on farmers will be enormous. Farm Bureau is seeking to require EPA to withdraw this regulation and propose a new rule that reflects not only the limitations imposed by both Congress and the Supreme Court, but the views offered after consultation with states.
The final rule defining the scope of waters protected under the CWA went into effect on Aug. 28, 2015. Litigation challenging the rule is ongoing and will be for years. Various federal courts have stayed the rule, but the rule is final.
The rule effectively eliminates any constraints the term “navigable” imposes on the Corps’ and EPA’s CWA jurisdiction. The rule grants regulatory control over virtually all waters, assuming a breadth of authority Congress has not authorized. The list of waters deemed “non-navigable” is exceptionally narrow, providing that few, if any waters, would fall outside federal jurisdiction. Such a shift in policy means that EPA and the Corps can regulate any or all waters found within a state, no matter how small or seemingly unconnected to a federal interest. Congress should not permit the agencies to adopt such an approach. Farm Bureau opposes this rule, which fails to respect the limits of federal CWA jurisdiction articulated by the U.S. Supreme Court in SWANCC and Rapanos. The Supreme Court rejected the notion that CWA jurisdiction extends to waters with “any” connection to navigable waters (no matter how tenuous) and rejected the agencies’ “land is waters” approach.
The final rule provides none of the clarity and certainty it promises. Instead, it creates confusion and risk by granting the agencies almost unlimited authority to regulate, at their discretion, any low spot where rainwater collects, including common farm ditches, ephemeral drainages, agricultural ponds and isolated wetlands found in and near farms across the nation. The rule defines terms like “tributary” and “adjacent” in ways that make it impossible for a typical farmer to know whether the specific ditches, ephemeral drains or low areas at his or her farm will be deemed a WOTUS. These definitions are certainly broad enough, however, to give regulators (and citizen plaintiffs) plenty of room to assert that such areas are subject to CWA jurisdiction. The rule will give the agencies sweeping new authority to regulate land use, which they may exercise at will, or at the whim of a citizen plaintiff.
Based upon an analysis by American Farm Bureau and maps created by Geosyntec, Pennsylvania is likely to be significantly impacted by the regulation. The analysis and maps reveal the dramatic expansion of EPA’s regulatory reach, stretching across wide swaths of land in Pennsylvania as follows:
• 7% of PA: All perennial, intermittent and ephemeral streams – and a 100-foot buffer surrounding them – are considered a WOTUS.
• 81% of PA: All waters (including wetlands) located even partially within a tributary’s 100-year floodplain, up to 1,500 feet, are considered a WOTUS.
• 99% of PA: On a case-by-case basis, water – within 4,000 feet from a tributary – determined to have a “significant nexus” to downstream waters could
be considered a WOTUS.
Farm Bureau asks Congress to require the EPA and the Corps to withdraw the rule, and limit funding for implementation of the WOTUS regulation.
Farm Bureau asks Congress to support legislation that specifically states a NPDES permit is not required when applying pesticides according to FIFRA, including S. 1500, S. 659 and H.R. 897.
Updated: March 2016