At the end of 2022, the U.S. Environmental Protection Agency and Department of the Army issued new rules to define the waters of the United States, aka WOTUS.
The EPA’s Dec. 30 statement reads, “The final rule restores essential water protections that were in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas, interstate waters as well as upstream water resources that significantly affect those waters. As a result, this action will strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies and downstream communities.”
The ruling, which expanded the WOTUS definition, determines how agencies identify bodies of water that are protected under the federal Clean Water Act. While the EPA announcement paints the WOTUS definition as a step forward, the Missouri Farm Bureau, led by President Garrett Hawkins, views it as a problem.
“If you were to sum it up in one word, uncertainty – regulatory uncertainty, to be more specific,” Hawkins said.
To unpack his point, Hawkins refers to the origin of the Clean Water Act, which was established in 1972.
“It was put in place by Congress because there were large water bodies that were catching on fire and were polluted,” he said. “That’s the image that’s conjured up in people’s minds.”
Indeed, in Cleveland, Ohio, in 1969, the Cuyahoga River, perpetually covered in oil slicks, caught fire and drew national media attention. The EPA was quickly established by a vote of Congress within half a year, in January 1970; the first Earth Day followed in April.
At the time the Clean Water Act was penned, it specified that it protected navigable waters, which are just what they sound like: waterways someone could steer a boat down. These were referred to as “the waters of the United States, including the territorial seas.”
Farmers didn’t have a problem with federal laws to keep navigable waters clean, Hawkins said, but regulation has since moved past recognizable lakes and rivers.
“We’ve had somewhat of a regulatory ping-pong match through the decades that became heightened during the Obama administration as a result of a string of federal court cases,” Hawkins said. “Ultimately, the Obama administration decided it was going to go in and draw bright lines.
“Unfortunately, the bright lines drawn by the administration would have thrown over 99% of Missouri as a state under federal jurisdiction. That was the case with many states.”
The revised rule by the EPA and U.S. Army Corps of Engineers states that water moves in hydrologic cycles, and discharge of pollutants must be controlled at the source. The new WOTUS definition includes intermittent streams, mudflats, wetlands and wet meadows. The definition is broad, the rule states, and the term “navigable” in the original act is of limited importance.
The new rule is extremely detailed, but it clarifies the Clean Water Act’s objective: to “restore and maintain the chemical, physical and biological integrity of the nation’s waters.”
Hawkins and the Farm Bureau maintain state land should be under state or local control.
During the Trump administration, Hawkins said, clear definitions were drawn by the Army Corps, and though not everyone was especially happy, they were spelled out, Hawkins said.
“For the first time since 1972, we actually had regulatory certainty as to where federal jurisdiction ends and state jurisdiction begins – and that was a good thing,” he said.
Trent Drake is president of the Polk County Farm Bureau and grows corn and soy in rural Bolivar.
Drake said all farmers feel the effects of the uncertainty of the WOTUS definition.
“There will be a lot of uncertainty because some bureaucrat in Washington, D.C., is going to make decisions on what constitutes runoff,” he said. “The way they’re going to apply it, whenever you have water running off a field or a puddle standing in it, they’ll use that to try to regulate us even more and try to get their little sticky finger into our business.”
The updated WOTUS definition includes standing water in a farm field and runnels that lead to low areas and ditches.
Drake said overregulation leads to hidden costs.
“It makes it hard to make future plans and all that when you’re not really sure what the cost to you is going to be,” he said.
Federal jurisdiction over an area of water means permission from the Army Corps is required for work to be done. Hawkins said he would not suggest any farmer move dirt without consulting an attorney and an engineer.
The cost of bringing in professionals to take care of a problem that a farmer might otherwise fix with a simple, practical step, such as moving obstructions from a stream or reinforcing a bank, makes farming more difficult for Drake, who adds that opinions can vary among those who inspect property.
“What they enforce on one person’s farm may be different than the other guy that comes out and inspects. Another guy’s farm may have a whole different opinion,” said Drake.
Civil and even criminal liability can result from moving forward on work that affects the watershed if a permit is not first acquired, according to Hawkins.
Hawkins testified before the U.S. House Water Subcommittee on Feb. 8 about the problems he sees with the WOTUS definition.
He gave the example of an east central Missouri farmer who was trying to save his soil from an overflowing creek that was filled up with gravel and had willow trees channeling water and sloughing away banks.
The farmer used what Hawkins called commonsense means to fix the problem by pushing large gravel to stabilize the bank and minimize soil loss.
“He was ultimately fined thousands of dollars for not getting a permit,” Hawkins said.
On March 9, The U.S. House voted 227-198 to roll back the broadened WOTUS definition. President Joe Biden has said he would veto the measure if it reached his desk.
Brent Stock, executive director of the James River Basin Partnership, said he often hears about frustration caused by the WOTUS definition. The partnership works with landowners, he said, and the organization does not get involved in political disputes.
“They’re really the ones that can make the big difference,” he said of farmers and rural landowners.
While most people can appreciate that a navigable stream is part of the waters of the U.S., it’s not always clear if an ephemeral stream – here when the weather is wet, gone when it’s dry – counts.
But all water is connected, Stock said, particularly in the karst topography of southwest Missouri. Most communities in the area rely on groundwater for their drinking water, and that’s where the karst connection is important, as pollutants can easily permeate the soluble rock.
While a farmer may retain soil by bolstering a stream bank with gravel, that action can also cause damage, Stock said.
“You can do a lot of damage in 10 minutes with a bulldozer that takes 100 years to fix,” he said.
A contractor who takes matters into their own hands without a proper understanding of stream morphology or hydrology can create a situation that degrades wildlife habitat, destabilizes banks downstream and causes issues for other landowners, Stock added.
Hawkins holds out hope that the U.S. Supreme Court will weigh in and clarify the definition further. As he said in his testimony in Washington, “No WOTUS before SCOTUS.”
A top court directive is expected soon in the case Sackett v. EPA, which tests Army Corps jurisdiction.
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