Now that the federal waters of the U.S. (WOTUS) rule has been finalized with publication in the Federal Register, agricultural and other groups are gaining insight on what the rule will mean once it takes effect on Aug. 28—and planning both legal and legislative challenges to its implementation.
"This federal waters of the U.S. rule is likely the most expansive and harmful change to an environmental regulation in decades," said Josh Rolph, California Farm Bureau Federation federal policy manager. "On behalf of our members, we hope to make a clear case to Congress for sending this rule back to the drawing board."
Meanwhile, 27 states joined in a variety of lawsuits against the rule within 48 hours of its publication, and the American Farm Bureau Federation joined with 11 other agricultural and business groups last week in a separate complaint.
"We anticipate many more lawsuits," CFBF environmental attorney Kari Fisher said. "Lawsuits are indicating that the rule violates the Clean Water Act, the U.S. Constitution and the Administrative Procedures Act, stating that the federal government is trying to usurp the states' primary responsibility for the management, protection and care of intrastate waters and lands."
CFBF, which has analyzed details of the almost 300-page rule, said it greatly expands the regulatory authority of the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers by increasing the number of waters that would fall under the agencies' jurisdiction. The rule would ultimately require additional permits and increase areas that would be placed under restricted use, Fisher said.
The EPA and Army Corps have said that the purpose of the rule is to assist them in determining what streams, wetlands, ponds and ditches will be subject to regulation under the Clean Water Act, and will provide clarity about which waterways must be protected against pollution.
The legal action by AFBF and the other groups, filed in federal district court in Texas, says the new rule grants the agencies broad control over land use, far beyond what Congress authorized in the Clean Water Act. The lawsuit also says that the vagueness and over-breadth of the rule violate the U.S. Constitution.
According to the AFBF complaint, "the Agencies are determined to exert jurisdiction over a staggering range of dry land and water features—whether large or small, permanent, intermittent or ephemeral, flowing or stagnant, natural or manmade, interstate or intrastate." The "opaque and unwieldy" rule, the complaint says, "leaves the identification of jurisdictional waters so vague and uncertain that plaintiffs and their members cannot determine whether and when the most basic activities undertaken on their land will subject them to drastic criminal and civil penalties under the (Clean Water Act)."
Regarding whether the lawsuits could temporarily halt enforcement of the rule, Fisher said that without an injunction that includes a request for the regulation to be put on hold in the interim while the case is being decided, the regulation remains effective Aug. 28. The various lawsuits, she said, have been filed in different federal courts and it is expected that a judicial panel will look at the lawsuits to decide which courts will hear the cases.
Under the final rule, Fisher said, waters that would be regulated have been expanded to also include modified tributaries and adjacent waters; enumerated regional features with a "significant nexus," such as vernal pools; and waters in the 100-year floodplain or within a certain distance of a water of the U.S.
Agricultural groups and other opponents say the final rule is even broader than the earlier, proposed rule. For example, Fisher said, "The definition of tributary has been broadened to include landscape features that may not even be visible to the human eye, or that existed historically but are no longer present."
The proposed rule required "the presence of a bed and banks and ordinary high water mark, plus some flow that sometimes reaches a navigable water." But the final rule, Fisher said, only requires the "presence of physical indicators of a bed and banks and ordinary high water mark." In addition, agencies will be able to use remote sensing or mapping and other desktop tools to establish the presence of a tributary.
Fisher said ditches are an example of constructed features that, in many instances, can meet the definition of a tributary under the final rule. Some ditches are excluded, however, "because the exclusions are tied to determining the existence of historic or current tributaries, so it may be difficult for landowners to know which ditches are excluded," she said.
The final rule treats "adjacent waters,"—including those that are not visible to a landowner—as automatically regulated and provides parameters for what is considered to be "neighboring" to determine what applies.
The final rule also includes a category of waters determined to have a "significant nexus" to a traditionally navigable water, interstate water or the territorial sea. Under the final rule, "significant nexus" is defined for the first time by regulation and is a catch-all category to determine jurisdiction, Fisher said.
As those affected by the rule learn how it might apply to their property once the rule takes effect in late August, CFBF and others are also focused on ongoing efforts in Congress to overturn the rule.
"Congress needs to act quickly, in a bipartisan way, to stop the administration from implementing this rule. If nothing is done, the future isn't looking so bright," Rolph said.
Farm Bureau supports S. 1140, the Federal Water Quality Protection Act, which would require the EPA to withdraw the rule and adhere to limiting principles that would ensure that any new proposal conforms to jurisdictional limits set by Congress and affirmed by the Supreme Court. In May, the House passed its version of the bill, although it did not receive the two-thirds vote that would have made it veto-proof. In addition, House and Senate appropriators have included language that would strike funding to implement the waters of the U.S. rule.
The final rule can be found at www.gpo.gov/fdsys/pkg/FR-2015-06-29/pdf/2015-13435.pdf.
For more information, see the AFBF "Ditch the Rule" website at ditchtherule.fb.org/.
(Christine Souza is an assistant editor of Ag Alert. She may be contacted at firstname.lastname@example.org.)