Last Friday afternoon, in a U.S. District Court in North Dakota, every farmer's future was being argued over. No decision has yet been reached.

Thirteen states, led by North Dakota, argued that EPA's new Waters of the United States rule will "…substantially negatively impact and irreparably harm North Dakota, the NDDA [North Dakota Department of Agriculture], North Dakota agriculture, and North Dakota farmers and ranchers."

The WOTUS rule is set to go into effect this week - on Aug. 28, 2015.

Gina McCarthy, EPA's Administrator, claims agriculture's concerns are "ludicrous" and "silly."  Let's review the rest of the story.

States are desperately seeking to postpone EPA's implementation of the WOTUS rule. They have asked EPA to not start implementing WOTUS, but EPA has not responded. Why is this dispute important to you?

Let me give you a few examples. The North Dakota court papers have numerous affidavits attached which describe in startling detail the impact WOTUS will have on farming operations in the state.

North Dakota's Agriculture Commissioner has filed a truly startling and descriptive affidavit regarding EPA's new role in North Dakota agriculture. The Commissioner states North Dakota has 31,000 farms and ranches. They cover 39.3 million acres, or 90% of the land area in North Dakota. There are over 45 million acres in all of North Dakota. There are over 4 million acres of surface water and 5,100 navigable river miles in the state which have wide flood plains which include many farms.

The Commissioner claims the new EPA rule will extend federal jurisdiction under Clean Water Act (CWA) to "…virtually every North Dakota river, creek, stream, along with vast amounts of neighboring and adjacent lands…" Further, he claims there are 80,504 miles of linear streams in North Dakota and 73,821 miles of these streams are "intermittent or ephemeral." He says in North Dakota, "Any low spot where water collects, including farm ditches, ephemeral drainages/dry streambeds, seasonal streams, agricultural ponds and puddles, and isolated wetlands found in or near farms across North Dakota will be subject to federal jurisdiction." (This means a Section 402 discharge permit 0r 404 dredge and fill permit will be required.)

Prairie pothole region targeted
Prairie potholes, which can be found in several upper Midwestern states, have been a target for regulation by EPA and environmental groups for years. In North Dakota substantial amounts of agricultural land is located in the prairie pothole region. The Commissioner believes these agricultural lands will be subject to WOTUS jurisdiction. Hopefully, he is incorrect in that the prior converted cropland exemption would protect these farming operations.

Pesticides and their application are a major concern. North Dakota believes there will be an immediate burden placed on its pesticide program. The Commissioner is concerned that he will have to regulate pesticide application on farm lands which are 4,000 feet from any adjacent "high water mark" on 85,604 miles of North Dakota navigable waters. 

The Commissioner's affidavit discusses the problem of the state mapping the newly federalized waters in North Dakota. He says "…this undertaking must begin immediately…"  He wants to protect farmers with a general pesticide permit because he believes that many farm operations will now be discharging pesticides into areas which EPA will deem to be "Waters of the United States."

There is a chilling statement in the affidavit, which claims, "The final [EPA] WOTUS rule is disruptive and causes a great deal of anxiety to agricultural producers and will directly jeopardize food security in the United States."

This is indeed powerful and not "silly"!

Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.