War wages on against Waters of the U.S.
November 16, 2016
The Waters of the United States rule, which was introduced by the Environmental Protection Agency and the Army Corps of Engineers, has been one of the most hotly contested regulations introduced under the Obama Administration.
Opponents argue WOTUS is an overreaching regulation that threatens landowners across the country.
On Nov. 1, several industry stakeholders, including the National Cattlemen's Beef Association and the Public Lands Council, filed the opening brief in the Sioux Circuit Court of Appeals, calling for the WOTUS rule to be invalidated.
Scott Yager, environmental counsel for National Cattlemen's Beef Association, said the crux of the ongoing lawsuit, which was filed in July 2015, is the EPA and Army Corps failed to follow correct protocols in finalizing the rule. The opening brief now addresses the industry's concerns about the legality of the rule.
“It gives the EPA an almost unchecked authority to go into farmers’ and ranchers’ backyards on private land and make determinations that a mud puddle or ditch are considered waters of the U.S. and are subject to regulation. This is a textbook example of the federal overreach and overregulation.”
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"Up to this point, the lawsuit has focused on the procedural issues," Yager said. "The opening brief argues that the rule is illegal because the agency violated the Administrative Procedure Act. The brief also argues the EPA violated the constitution because the rule goes beyond the boundaries of jurisdiction. The WOTUS rule stretches the boundaries of the Clean Water Act to include dry creek beds and prairie potholes, which goes beyond any historic perception of jurisdiction."
Public Lands Council executive director, Ethan Lane, said the necessary procedure wasn't followed when the rule was made.
"(The EPA) withheld key documents until after the comments period was closed. They illegally lobbied for the rule, and engaged in quite a bit of illegal behavior in advancing a federal rule," Lane said.
With the opening brief filed, the EPA has a chance to respond to the opening brief, and Yager said there will be some back and forth until March 2017. He anticipates the Sixth Circuit Court of Appeals to make a decision by late spring or early summer.
"Depending on the results, we could see more appeals from either side going to the U.S. Supreme Court," Yager said. "The nationwide stay of the rule is still in place and was issued by the Sixth Circuit Court of Appeals. I believe the stay will remain in place throughout the hearings."
Lane said this is just the beginning of a long process, but if implemented, the rule would be detrimental to producers.
"WOTUS, as it's currently written, grants the EPA a broad authority to regulate resources around the country," Lane said. "It gives the EPA an almost unchecked authority to go into farmers' and ranchers' backyards on private land and make determinations that a mud puddle or ditch are considered waters of the U.S. and are subject to regulation. This is a textbook example of the federal overreach and overregulation."
Yager, though, added it's more than just a matter of overreach.
"This issue goes beyond just WOTUS and addresses how far the government can reach," Yager said. "It will shift how far the federal government can impact people. WOTUS is a huge problem for our members. There will be a lot of operations that will need permits, which cost time and money in order to be in compliance. It's an overreach, and we'll keep at it and keep fighting for a resolution."
Yager said National Cattlemen's Beef Association is engaged in a fight on multiple levels. In addition to the legal battle, NCBA is lobbying to Congress to put a stop to the WOTUS rule.
"In 2015, the U.S. House of Representatives passed legislation that would send WOTUS back to the drawing board," Yager said. "Unfortunately, the Senate was short three votes to pass similar legislation. With the end-of-the-year appropriations process underway, we hope to see a policy writer put in place that would defund the WOTUS rule. We are trying to work with Congress to find a better solution for landowners."
The National Farmer's Union was one of the very last commodity groups to denounce support of the WOTUS rule. Tom Driscoll, NFU director of conservation policy and education, said NFU's approach to handling their concerns with the WOTUS rule.
"The biggest reason that caused NFU to ultimately decline to endorse WOTUS was because there are no concrete limits on what can be considered a similarly situated water," Driscoll said. "We waited to express opposition until the final rule was published. We wanted to work with EPA on way to make the rule better for farmers and ranchers. We didn't match the rhetoric of other groups because we believed EPA was trying to clarify the rules, and we appreciated their efforts. It's in NFU's culture and values to work for smart governance that makes sense to our ranchers."
Driscoll added the EPA did make some changes NFU requested, but not enough.
"The Clean Water Act was intended to be revisited every 7-10 years to accommodate advances in technology and to further progress in environmental protection," Driscoll said. "The longterm trend with Congress right now, which is very accentuated with the current gridlock we are facing, is they are no longer able to revisit these things, so that's kind of an underlying issue. The ongoing lawsuit demonstrates that WOTUS is going to remain a problem with courts kicking the issue back and forth until Congress can come up with a reasonable solution."
However, Driscoll said the ongoing lawsuits are getting in the way of finding solid solutions to water management concerns.
"At this stage in the game, it's a matter of people being obstructionists instead of fighting for actual solutions like determining the definition of similar situated waters and what is considered jurisdictional," he said.
Closer to home, Todd Wilkinson, a feeder from DeSmet, S.D., and the president of the South Dakota Cattlemen's Association, shared his concerns regarding the WOTUS rule.
"WOTUS expands jurisdiction as much as 80 percent or more," Wilkinson said. "It expands to extent that it determines whether or not you can plow or disc ground and fields will be relabeled as upland or dryland. Another problem is it would regulate usage within the 100-year flood plain, and in South Dakota, most areas don't even have the flood plain mapped out. With as much wetland as we have in the state, we'll really be under the gun for an expansion of jurisdiction and that will be highly problematic."
Wilkinson added WOTUS is written very vaguely, leaving producers vulnerable and wondering whether they are in compliance or not.
"Producers won't know how to be in compliance to this rule," he said. "You might be reworking a pen or cleaning out a dry draw, and they come in after the fact because they can see you from an eye in the sky, and if they determine you're in violation of something, they'll slap you with a horrendous daily fines. When you change the rules and make it so ambiguous that you don't know whether you're in compliance or not, it makes it very challenging for producers."
Wilkinson urged area producers to contact their elected officials and urge them to fight to defund the implementation of this rule.
"The statement has been made that this is the biggest jurisdictional land grab by the government and I don't think that's an overstatement," he said. "This is not just a lot of noise. If we sit on our hands, producers will be subject to a regulatory onslaught for years down the road."