Trick or
Truth? What EPA and the Corps of Engineers Are Not
Saying About Their “Waters of the U.S.” Proposal
Provided by the American Farm Bureau Federation October 30, 2014
Last month, EPA and the U.S. Army
Corps of Engineers issued some “Questions and Answers” about their proposed
rule defining “navigable waters” or “waters of the United States” under the
Clean Water Act. But the agencies’ Q&A doesn’t give straight, reliable
answers to the questions posed. Instead, it omits or even misstates key
information about the proposed rule and its true impacts on farmers and
ranchers, builders, local governments, and countless others.
The purpose of this document is to provide the real
“answers”—the truth that the public deserves about the proposed rule. We don’t
mention each and every inaccuracy in the Q&A. But we do provide detailed
answers to some of the most important questions, with citations to the proposed
rule and other resources. If you’re not sure who’s telling the truth, please read the fine print (79 Fed. Reg.
22,188-274 (Apr. 21, 2014)). Then
tell EPA and the Corps to Ditch the Rule.
Is the
proposal an expansion of jurisdiction?
Agencies say: No.
From the Clean Water Act’s enactment, its scope of jurisdiction, included any
waterbody that had a connection with interstate commerce. The Supreme Court
narrowed jurisdiction by focusing on a more technical and scientific
understanding of water features and their connections to downstream traditional
navigable waters. This new focus narrowed the scope of the Clean Water Act but
placed certain waters in a gray area, where case-specific determinations were
required. This gray area creates uncertainty, litigation risk for some land
owners, and inconsistent application of the CWA. The proposed rule clearly
applies the “significant nexus” test as contemplated by Justice Kennedy. It
also reduces litigation risk by reducing the amount of waters in this gray
area.
Truth:
Yes, the proposal would
dramatically increase the number of so-called “waters” (which don’t really look
like water) that are subject to CWA jurisdiction. That’s why the agencies so
desperately want this rule! (Agencies don’t fight so hard to achieve
“clarity.”)
The Clean Water Act has never
been as broad as what the agencies now propose. It’s true that the agencies’
own historical
regulations were very
broad (any connection with interstate commerce).
But those rules were also illegal. The Supreme Court found (twice,
in 2001 and 2006) that those rules went far beyond what Congress ever intended.
[1]
The nation’s highest court—which has the job of interpreting federal laws—found
that Congress always intended to focus on “navigable waters” plus waters that
have a substantial connection to those waters, like wetlands adjacent to
navigable waters.
Because of these Court decisions,
today the Corps and EPA cannot assert jurisdiction over nonnavigable waters
unless they find that a particular feature has a “significant nexus” to actual
navigable waters.
[2]
The agencies’ current guidance says that requires consideration of the
volume,
duration, and
frequency
of flow in the non-navigable water, as well as
proximity to downstream navigable waters.
[3]
As a result, today very few so-called “ephemeral streams” (that flow only when
it rains), ditches, or isolated wetlands (not adjacent to navigable waters)
have ever been subjected to Clean Water Act jurisdiction.
[4]
The proposed rule would get rid of the need for
case-by-case determinations—and dramatically expand Clean Water Act
jurisdiction—by making a
categorical finding
that certain types of features have a “significant nexus.”
[5]
The categories of regulated features are very broad. For example, they would
cover “ephemeral streams” even if they are rarely wet, so long as water
sometimes flows there that ultimately reaches navigable waters (even miles
away). (See below in the section about “tributaries”.) They would also cover
even the smallest “wetland” or other water (pond) so long as it is located in a
floodplain (without saying how big a flood) or in a “riparian area.”
If a water on my property is jurisdictional, does that mean the federal
government controls my use of the water?
Agencies say: No. CWA permitting only applies where someone
proposes to dump waste or other pollutants into the nation’s streams, rivers,
lakes, and wetlands. These are waters where communities get their drinking
water, where families swim and boat, and where fish are caught for recreation
and for sale to markets and restaurants. If you’re not polluting these water
bodies, you don’t need any sort of permit. Also, normal farming practices that
involve dredged or fill material, regardless of jurisdiction, do not need a
permit, since the law permanently excludes those practices.
Truth:
Yes! If a feature on your
property is jurisdictional (remember, it may not even look like “water” most of
the time), you will be generally prohibited from doing
anything that causes “pollutants” (including dirt, dust,
“biological materials” or chemicals) to fall or be placed into that feature
from any “conveyance” (which could be a nozzle, shovel, plow or most anything
else). The Clean Water Act protects “waters of the United States” by
completely prohibiting the “discharge of
any pollutant” into those features, except where the discharge is authorized
under a permit or under another provision of the statute.
[6]
Activities don’t have to look like “dumping waste” to be prohibited, and they
don’t have to result in any actual environmental harm—they just have to cause
some amount (even a very small amount) of “pollutant” to fall or be placed into
a jurisdictional “water.”
[7]
Also, the ban on discharges continues year round, even if the protected feature
only contains water for a few days or in certain seasons.
There is no “right” to a Clean Water Act permit, even if
your livelihood depends on doing something that may cause “pollutant” (like
fertilizer, dirt, or herbicide) to fall into jurisdictional features.
[8]
The Corps or EPA can take years to issue a permit, or they can decide not to
issue one at all. Just the process of applying for a permit can be very
burdensome, costing tens of thousands of dollars in consultant and legal fees.
[9]
It is true that moving dirt in a jurisdictional feature is
sometimes exempt from section 404
(“dredged or fill material”) permitting, if it is part of
“normal” farming or ranching activities.
[10]
But the agencies’ Q&A fails
to mention that they have severely limited what they consider “normal.” For
example, activities are only “normal” (according to the agencies) if they are
part of an “established (i.e. on-going)” farming or ranching operation at that
location, not a new operation.
[11]
Because that agency interpretation came out in 1977, the agencies have taken
the position that new operations require a section 404 permit unless they have
been “ongoing” since 1977.
[12]
In private meetings, EPA officials have admitted that farming that has not been
ongoing since 1977 (e.g. plowing across a jurisdictional ephemeral drain) would
require a section 404 permit—but “only for the first year” (after that, it
would be an “established” operation).
[13]
Another limit on the “normal”
farming exemption is the so-called “recapture” provision. Under this provision,
a permit is required if “normal” farming or ranching activity is intended to
bring a jurisdictional feature into a new use, “where the flow or circulation
of [the jurisdictional water] may be impaired or the reach of such waters be
reduced.” 33 U.S.C. § 1344(f)(2) (CWA
§
[14]
404(f)(2)). Because the proposed rule would assert jurisdiction over very small
“waters” it may not take much to “impair” the flow or reach of those features.
In fact, the proposed rule suggests that a farmer would be in violation of the
law if farming across an ephemeral drain caused the “bed and bank” of that
feature to disappear (e.g. smoothing out a natural channel in the land).
14
Likewise, impounding a jurisdictional ephemeral drain or small wetland (to
build a farm pond, for example) would be “recaptured” and would
not be exempt.
Third, the normal farming
exemption only applies to dredge and fill activities authorized under section
404, such as plowing and moving dirt. It does not apply to “discharges” of
other materials, like fertilizer or pesticides that may fall into farmed
ephemeral drains or wetlands or nearby ditches. If
any amount of these materials is applied into, or falls into,
jurisdictional features as part of ordinary farming activity, the farmer will
be in violation of the Clean Water Act unless he or she has obtained a Clean
Water Act section 402 discharge permit.
[15]
Again, this is true even if the feature is not carrying water at the time
fertilizer or pesticide is being applied.
Finally, the agencies’ Q&A fails to mention their new
“interpretive rule” that says the “normal” farming exemption applies only to
practices that comply with Natural Resources Conservation Service (NRCS)
technical standards.
[16]
So, if you want to build a fence across a jurisdictional ephemeral drain, ditch
or wetland, and if you’ve had “ongoing” farming or ranching there since 1977,
and if you comply with NRCS technical standards for fence building, your
fence-building may be exempt from section 404 permitting. That’s not quite as
broad an exemption as the agencies seem to want the public to believe.
This proposed rule includes seasonal and rain dependent streams when they
meet the definition of a tributary. Would the water that flows on my land only
after a rainstorm now become jurisdictional?
Agencies say: Rainwater that flows on top of the land, sometimes referred to as
sheetflow, or through an erosion feature is not jurisdictional under the CWA.
The proposed rule would only cover features that have a bed and bank and
ordinary high water mark. These features take years to develop. An erosion
feature is not jurisdictional because it does not have these characteristics.
Thus, the proposed rule specifically excludes erosional
features, such as gullies.
Truth:
Again, the answer is “Yes!” Water
that flows on land only after a rainstorm absolutely will be regulated under the proposed rule. Here’s how:
The rule would define
“tributaries” to include landscape features where rainwater channels, as long
as the flowing water leaves a mark on the land, and so long as some water from
the feature sometimes makes its way to a navigable water (no matter how far
away).17 The agencies use the words “bed” and “bank” and “ordinary
high water mark,” which sound like parts of a river or stream. In reality,
though, the agencies’ explanation makes clear that those words just mean some
kind of channel (land with higher elevation on each side of land with a lower
elevation) plus any physical marks left by flowing water.18
Below is a photo of one feature
in Tennessee where the Corps of Engineers actually found a bed, bank and
ordinary high water mark. The agencies see features like this as “waters”
(“ephemeral streams” or “tributaries”) even though they are dry except when it
rains. When water flows in these features, the agencies don’t see that as water
flowing across the land, they see it
as water flowing in streams. That’s
why EPA and the Corps say (with a straight face) that they are not proposing to
regulate “rainwater that flows on top of the land.” But to most people, this is
land.
17
79 Fed. Reg. at 22,202 (the water may contribute flow directly or may
contribute flow to another water or waters which
eventually flow into [downstream navigable waters]).
18
The agencies explain: “A tributary is a longitudinal surface feature that results from directional surface
water movement and sediment dynamics demonstrated by the presence of bed
and banks, bottom and lateral boundaries, or other indicators of [ordinary high
water mark]…. in some regions of the country where there is a very low gradient,
the banks of a tributary may be very low or may even disappear at times.” 79
Fed. Reg. at 22,202. Translation: the proposed rule will regulate activities on
land where water channels and flows
when it rains, so long as the flowing water leaves a mark on the land. The
“channel” may be so subtle that you can’t really see it.
When
the agencies say they are not planning to regulate “sheet flow,” that just
means they will not regulate water that flows with
no channel—where water flows evenly dispersed across the land
surface.
[17]
When they say they are not planning to regulate “erosional features,” the
agencies seem to mean that they will not regulate places where the soil has
eroded but there is no bed, bank and ordinary high water mark. Given how easy
it is to find a bed, bank and ordinary high water mark (see above), many areas
where soil has eroded will be viewed as “ephemeral tributaries” and not as
“erosional features.” Even the agencies seem to recognize that it can be very
difficult to tell the difference between the two.
[18]
Would the proposed rule protect, as tributaries, all “channels”
regardless of how often they flow or how much water they carry?
Agencies say: No. The agencies
proposed, consistent with the Supreme Court decisions, to protect those flowing
waters that significantly affect downstream navigable waters. Simply
establishing a connection does not mean that the connection creates the
required significant effect. The agencies have defined tributaries based on
physical indicators of flow – bed and banks and ordinary high water mark – and
many “channels” will not meet this definition. The agencies are eager to review
public comments on the proposed rule to ensure that the definition of tributary
is clear and reflects this.
Truth:
Look closely for the trick in
this “question.” It’s true that the proposed rule would not regulate each and
every “channel.” But it would regulate
each and every “tributary” (as newly defined) regardless of how often they flow
or how much water they carry. All that’s needed is enough water flow to leave a
mark (see photo above), plus any
amount of flow that ever reaches a
navigable water (no matter how far away). Any channel like that will be
automatically regulated as a “tributary.”
If you’ll pardon the bureaucratic
jargon, we will quote the agencies’ explanation:
To meet this definition, a water need not contribute flow directly to
[downstream navigable waters]. As the definition makes clear, the water may
contribute flow directly or may contribute flow to another water or waters which eventually flow into
[downstream navigable waters]… Under
the proposed definition of tributary, the
upper limit of a tributary is established where the channel begins.
79 Fed. Reg. at 22,202. The agencies go on to say:
Tributaries that are small, flow infrequently, or are a substantial distance from the
nearest [traditional navigable water] (e.g.,
headwater perennial, intermittent, and ephemeral tributaries) are essential
components of the tributary network….
79 Fed. Reg. at 22,206.
[19]
Tricky, huh?
Do I need a CWA permit when I am applying pesticides or herbicides to any
farm fields?
Agencies say: No. A permit is only needed when
pesticides are applied to waters that are jurisdictional. For example, if
wetlands protected under the CWA are being farmed, activities such as plowing,
seeding, and harvesting do not require a CWA permit. Applying pesticides or
herbicides in jurisdictional wetlands, however, would generally require a
permit, and may be satisfied by a general permit. In addition, neither
agricultural stormwater nor return flows from irrigation need permits.
Truth:
This is an especially tricky
answer, because it begins with a quick “no”, but if you keep reading, the
answer is “yes”! The truth is that many farm fields include features that will
be “navigable waters” under the proposed rule, such as ephemeral drainage paths
(“ephemeral tributaries”) and low spots (wetlands). To the farmer, these
features look like land, and they may be dry except when it rains (again, see
the photo above). But under the proposed rule, many of these features will be
“jurisdictional waters,” and any application of pesticide there—or even
fertilizer—would require a Clean Water Act permit. That means putting
any amount of pesticide (or fertilizer)
onto these features—right in the middle of a farm field—without a permit would
be an illegal “discharge” with penalties of up to $37,500 per violation, per
day, even at times when the protected “water” contains no water.
[20]
It’s no wonder the agencies don’t like to say that!
The agencies say that a general
permit “may” satisfy the pesticide permit requirement, and that’s technically
true: A “general permit” for pesticide use may,
but may not, be available, depending on the state. In many states,
coverage under the pesticide general permit is limited to specific types of
applications that would not include farm fields.
[21]
In addition, there is no general permit for fertilizer application. If no
general permit is available for the farmer’s activities, he or she would have
to seek an “individual” permit, which could take months or even years and many
thousands of dollars in legal and consultant fees.
