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States, farmers seek clarity in new water pollution regulation

by Ryan Pivoney | March 13, 2023 at 4:00 a.m.
Julie Smith/News Tribune Flanked Thursday by elected Missouri officials and representatives of agricultural agencies and associations, Gov. Mike Parson speaks to the media about a lawsuit filed by Attorney General Andrew Bailey against the Biden Administration regarding proposed Waters of the United States rules.

Federal water regulators and Missouri farmers want the same thing from a new rule set to be implemented later this month: Clarity.

The Environmental Protection Agency and Army Corps of Engineers recently proposed a new definition of waters that will be subject to federal pollution regulations under the Clean Water Act. The new Waters of the United States (WOTUS) definition is intended to settle nearly a decade of debate around what bodies of water federal agencies can regulate.

The rule is meant to provide "clear rules of the road," according to a public fact sheet published by the agencies.

Missouri and 22 other states have filed a lawsuit seeking to block the new definition from taking effect. They want more guidance on the scope of the Clean Water Act from the United States Supreme Court and claim the new definition set by the agencies is too vague.

"President Biden's rush to issue this rule is nothing short of a land grab," Missouri Attorney General Andrew Bailey said. "It is an attempt to turn Missouri agricultural land over to federal, unelected bureaucrats -- federal, unelected bureaucrats at the EPA. And we're not going to let it happen."

A history of WOTUS definitions

Congress passed the Clean Water Act in 1972, making it the country's primary federal law to regulate water pollution. Its goal is to maintain the "chemical, physical and biological integrity of the nation's waters."

The law prohibits discharging pollutants into "navigable waters," which the act defines as "the waters of the United States, including the territorial seas."

Federal regulators responsible for implementing the Clean Water Act took to defining the term "waters of the United States" through regulation and published guidance, and the EPA established a permitting program for discharges into protected waters.

Prior to 2015, WOTUS was defined as all waters used or potentially used for interstate or foreign commerce, all waters subject to the ebb and flow of the tide, all interstate waters and wetlands and all other waters that, when used, could affect interstate or foreign commerce.

Lakes, rivers, streams, mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes and natural ponds could be regulated under the definition, which was created in the 1980s.

The pre-2015 regulatory regime is complex, according to the National Agricultural Law Center. It involves regulations the EPA adopted in the 1980s and guidance the agency issued in the 2000s in response to court rulings.

"Under this definition, some waters are more easily identifiable as falling under (Clean Water Act) jurisdiction than others," according to the National Agricultural Law Center.

As a result, states sued.

The conversation around WOTUS took off around 2015 when the EPA rolled out its Clean Water Rule. The day before the rule was set to take effect, a federal court in North Dakota blocked it in 13 states, including Missouri, after they sued.

A couple months later, a federal appeals court issued an order staying the 2015 Clean Water Rule throughout the nation, restoring the "familiar, if imperfect" pre-2015 regulatory regime. The U.S. Supreme Court then found the appeals court lacked jurisdiction to stay the rule.

The EPA and Army Corps of Engineers didn't return to the 2015 Clean Water Rule because of a separate rule change and continued operating under the pre-2015 regulations. In 2018, a federal court in South Carolina vacated the separate rule and returned most of the country to the 2015 Clean Water Rule.

The 13 states it was originally blocked in, including Missouri, continued using the pre-2015 regulations. Through court action, the list of states not following the 2015 Clean Water Rule eventually grew to 28. The EPA repealed the Clean Water Rule in 2019, taking the rest of the country back to the pre-2015 rule as well.

The agencies enacted a new rule in 2020 called the Navigable Waters Protection Rule. That was in effect nationwide until a federal court in Arizona struck it down in 2021 and the agencies went back to the pre-2015 rule.

At the end of 2022, the EPA and Army Corps proposed a new WOTUS definition to be implemented March 20.

The definition is based on the pre-2015 regulatory structure and updated to reflect court decisions, new science and the agencies' technical expertise. It divides waters into seven categories: traditional navigable waters, territorial seas, interstate waters, impoundments, tributaries, adjacent wetlands and additional waters.

It also includes eight categories of waters that are excluded from Clean Water Act regulations. Those include: previously converted cropland, waste treatment systems including ponds or lagoons, ditches draining only dry land, artificially irrigated areas, artificial lakes and ponds, artificial swimming or reflecting pools, land depressions filled with water and low-volume swales or erosional features.

'It wouldn't work'

Andy Clay is a seventh generation farmer from Jamestown, about 25 miles north of the state capital. He grows corn and soybeans and raises beef cattle on the land his family settled in 1816.

Clay Farms is located directly next to the Missouri River. Clay said he farms in a couple different river bottoms along the river as well as some creek bottoms in the area. He uses higher ground and hills to sustain his cattle.

"The river bottom is a very rich, productive soil so it can be very good," he said. "But it has its challenges whenever Mother Nature decides for it to be challenging."

Clay said he's entirely in support of the Missouri attorney general joining the lawsuit against the new WOTUS rule. The rule is concerning, he said, because of the uncertainty that accompanies it.

Clay said he's unsure what would be regulated under the new rule and is worried that he would be required to get a permit to conduct basic operations on his farm, such as spreading fertilizer on upland pastures after rainfall. He wondered how a low spot on his farm that collects water after a heavy rainfall would be assessed by federal regulators.

"In the agriculture world, whenever it's time to plant our crops, move our cattle or mow our hay, we already have to play around Mother Nature's schedule," Clay said. "Waiting on a permit or something like that to do such is just not feasible. I mean, it wouldn't work."

The Clays have a history of opposing WOTUS changes. Starting in 2014, the farm family collaborated with the Missouri Farm Bureau on a series of videos for its "Ditch the Rule" campaign.

Clay said changes to the rule over the past decade have left him with little clarity. He's worried the new rule will leave him in the same position.

"It's just a concern of opening that door and then not knowing where it's going to go," he said. "And don't get me wrong, we're all for clean water. I feed my family the same thing that we sell as products that end up at other family's homes. We drink out of well water that we also farm right around."

A common concern

Missouri Farm Bureau President Garrett Hawkins said farmers throughout the state are frustrated that the federal government hasn't maintained a consistent definition of what qualifies as "Waters of the United States."

Hawkins said Congress intentionally didn't define "waters of the United States" during the initial passage of the Clean Water Act in an effort to protect states and individual farmers. He described resulting guidance and agency rulemaking as an "ebb and flow of different interpretations of the Clean Water Act."

Under the new rule, the EPA and Army Corps of Engineers will use two standards to determine jurisdiction over tributaries, adjacent wetlands and waters that fall under the "additional waters" category.

To meet the Relatively Permanent standard, a body of water would need to be relatively permanent, standing or continuously flowing and connected to traditional navigable waters. The Significant Nexus standard is focused more on how bodies of water affect larger downstream waters protected by the Clean Water Act. If the smaller body of water significantly affects the chemical, physical or biological integrity of a traditional navigable water, territorial sea or interstate water, it could be subject to regulations.

Hawkins said the rule is full of vague concepts and opens the agencies up to make more case-by-case decisions on whether a body of water would be subject to regulations.

"What we will see over time is regulatory creep to eventually get us to an expansive rule like what we saw in 2015," he said. "But it's going to take place over time."

Hawkins described the 2015 Clean Water Rule "was the most egregious federal overreach we had ever seen," adding members were adamantly opposed to it.

Michael Connor, assistant secretary of the Army for Civil Works, said in a statement that the new rule provides a "clear and supportable definition" of WOTUS that will allow for more efficient and effective implementation.

Connor said he expects the rule to "provide the clarity long desired by farmers, industry, environmental organizations and other stakeholders."

EPA Administrator Michael Regan said the agency conducted "extensive stakeholder engagement" and built on what it learned from previous rules before publishing the new one. He said protecting water is essential for healthy communities and thriving economies.

"EPA is working to deliver a durable definition of WOTUS that safeguards our nation's waters, strengthens economic opportunity and protects people's health while providing greater certainty for farmers, ranchers and landowners," he said in a statement.

Hawkins said the new rule isn't as tightly written as the 2020 Navigable Waters Protection Rule, which he said was the first time federal regulators clearly indicated what bodies of water would be covered under the Clean Water Act.

The new rule gives the agencies latitude to reach whatever regulatory conclusions they wish, he said. Permitting processes can be cumbersome to farmers, Hawkins said, because they may require a landowner to hire attorneys and environmental consultants. Failure to comply with permitting processes can result in civil and criminal penalties.

"The concern is the federal government stepping into our every day business and how we operate our farms and ranches," Hawkins said.

Hawkins said Missouri has routinely fought WOTUS definitions and members of the Farm Bureau applaud the latest effort.

Bailey, the state attorney general, recently announced his office was joining 22 other states in a lawsuit disputing the new WOTUS definition. Leveled against the U.S. Environmental Protection Agency and Army Corps of Engineers, the 65-page lawsuit was filed Feb. 16 in North Dakota and asks the court for an injunction to stop the rule from taking effect.

Bailey said the federal government should wait for the Supreme Court to rule on a pending case related to the WOTUS rule before implementing it.

The U.S. Supreme Court is expected to decide a case this spring involving the Clean Water Act and how it relates specifically to wetlands. Bailey and Hawkins said they want federal regulators to wait for the results of that case, and what it means for the scope of the Clean Water Act, before implementing a new WOTUS definition.

Gov. Mike Parson has also voiced his opposition to the new definition. Parson was one of 25 governors to sign a letter to President Joe Biden earlier this year asking for a delay to the WOTUS rule.

"Given the many outstanding issues the recent WOTUS rule generates, particularly in rural America, we ask that you delay implementation of the rule until the Court decides Sackett," the letter states. "Small businesses, farmers and communities across America simply cannot afford another costly revision."

Asked what the right definition of WOTUS should be, Bailey said he would rely on the Supreme Court's decision.

"This move was senseless because there's a case pending before the United States Supreme Court that will likely interpret this statute and provide clarity for both landowners and the EPA," he said.

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