WOTUS RULE GOES INTO EFFECT FRIDAY
August 28: Farming and Ranching Under the New "Waters of the U.S." Rule
This Friday (August 28, 2015), the new WOTUS rule recently issued by EPA and the Army Corps of Engineers defining "waters of the U.S." (WOTUS) will officially go into effect.
 
We (collectively as your organization) have been working on this issue in several different ways over the past two-years. To date, 31 states have applied for injunctions. Illinois is not one of those states but she Illinois Farm Bureau has asked Attorney General Madigan to join one of the pending suits. Industry and business groups such as Farm Bureau have also filed suits seeking injunctions. Unless a Court grants an injunction, the rule will go into effect on Friday and you must comply with the rule or risk significant fines and penalties.
 
As you know, the rule expands federal Clean Water Act (CWA) jurisdiction over many landscape features found on private lands-including farm, ranch and forest lands across the nation. As a result, many essential and commonplace farming, ranching and forestry practices may now result in "discharges" of "pollutants" into WOTUS that require a CWA permit. Unauthorized discharges to WOTUS will be a violation of federal law, subject to large potential penalties in enforcement by the government or private citizens.
 
The following document prepared by the American Farm Bureau Federation provides information to help you understand which features on your land may be WOTUS, which activities may cause a violation of the law and where to go for help.
 
CWA Tool for Land Control
The CWA provides a powerful incentive to learn the status of water features near where you farm or ranch. Unpermitted discharges of "pollutants" into WOTUS are unlawful-and carry large potential penalties-even if the farmer or rancher has no knowledge that a feature is WOTUS. In addition, if a feature is later determined to be WOTUS, government or citizen enforcers could "reach back" and impose penalties for any discharge that occurred over the past five years.
Maps Show 99%+ Land Under Federal CWA Regulations
A series of maps released by the American Farm Bureau Federation show how the EPA will radically expand its jurisdiction over land use if its controversial Waters of the United States rule takes effect as expected August 28. That expansion comes even as major parts of the rule remain largely incomprehensible to experts and laypeople, alike.
 
The maps, prepared by Geosyntec Consulting, show the dramatic expansion of EPA's regulatory reach, stretching across wide swaths of land in Pennsylvania, Virginia and Montana. In Pennsylvania, for example, 99 percent of the state's total acreage is subject to EPA scrutiny. Landowners have no reliable way to know which of the water and land within that area will be regulated, yet they must still conform their activities to the new law.
 
"Farmers face enforcement action and severe penalties under EPA's new rule for using the same safe, scientifically sound and federally approved crop protection tools they've used for years," AFBF President Bob Stallman said. "This rule creates a new set of tools for harassing farmers in court, and does it all with language that is disturbingly vague and subject to abuse by future regulators. It's worth saying again: The EPA needs to withdraw this rule and start over."

Maps prepared to date can be found here:

 Montana WOTUS Maps

Pennsylvania WOTUS Maps

Virginia WOTUS Maps


Interactive Maps in Detail
The maps' base layer shows areas regulated as tributaries and adjacent wetlands without a case-specific "significant nexus" analysis under previous rules. Through a progression, the maps add "ephemeral streams"-low spots in the land that drain and channel water away from farmland after a rain but are otherwise dry. The EPA has sometimes asserted jurisdiction over such areas before, but only after a site-specific finding of a "significant nexus" to downstream waters. Under the new rule, all such "ephemeral tributaries" are regulated.
 
With this added jurisdiction in place, the Clean Water Act will prohibit many common agricultural practices in or around these ephemeral features. Any unpermitted discharge-whether pesticides, fertilizer or even disturbed soil-will leave farmers vulnerable to enforcement by EPA, the Corps, or private citizens, with severe potential penalties. This means unless farmers are able to navigate the regulatory system to secure a costly Clean Water Act permit, farming in many areas will be significantly restricted.
 
The maps' next layer shows how the rule expands the definition of regulated "adjacent waters" to cover all waters (including wetlands) that lie, even partially, within 100 feet on either side of these newly regulated ephemeral drains.
 
Next, they show where even more "adjacent waters" may lie-and this is where the vast uncertainty comes in. Where any part of a water or wetland is within the 100-year floodplain of a tributary, and not more than 1,500 feet (1/4 mile) from the tributary, that entire water feature is regulated. The uncertainty springs from the fact that many areas lack flood zone maps. What's more, many such maps are out-of-date, and most ditches and ephemeral streams do not have mapped flood zones. The result is that farmers and other landowners lack even the basic tools to identify wetlands or other waters that are automatically regulated under the rule.
 
The final blow-the almost unlimited reach of the rule-is shown in the final map layer that covers waters that are not "tributaries" or "adjacent," but may still be jurisdictional based on a "significant nexus" to downstream waters. The WOTUS rule allows "significant nexus" regulation of waters (including wetlands) that lie even partially within 4,000 feet (about ¾ mile) of any tributary. Mapping 4,000 feet from even just the known ephemeral streams-ignoring ditches and not-yet-identified ephemeral tributaries-shows that this 4,000-foot zone of uncertainty covers the entire landscape in many parts of the country.

31 States
Farm Bureau
Businesses
File For Injunctions
In July, The American Farm Bureau Federation, Texas Farm Bureau, Matagorda County Farm Bureau, and 11 other agricultural and industry groups asked a federal court to vacate the controversial new rule redefining the scope of federal jurisdiction under the Clean Water Act. The complaint, filed in federal district court in Texas, claims the new rule grants EPA and the U.S. Army Corps of Engineers broad control over land use far beyond what Congress authorized in the Clean Water Act. The lawsuit also claims vagueness and over-breadth of the rule violate the U.S. Constitution. The groups also challenged EPA's aggressive grassroots advocacy campaign during the comment period, which reflected a closed mind to concerns expressed by farmers and others.
 
EPA and the Corps first proposed the rule in March 2014, promising clarity and certainty to farmers, ranchers, builders and other affected businesses and landowners. "Instead we have a final rule that exceeds the agencies' legal authority and fails to provide the clarity that was promised," AFBF General Counsel Ellen Steen said. "AFBF filed this lawsuit to do everything we can to protect the interests of farmers and ranchers, but litigation is not a quick or perfect fix. It is long, cumbersome and expensive, and it leaves farmers and others facing immediate harm and uncertainty under this rule."
 
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 "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)."
 
The AFBF lawsuit follows four similar suits filed by officials representing 31 states seeking an injunction on implementation of the rule. AFBF's co-plaintiffs are the American Petroleum Institute, American Road and Transportation Builders, Leading Builders of America, National Alliance of Forest Owners, National Association of Home Builders, National Association of Manufacturers, National Cattlemen's Beef Association, National Corn Growers Association, National Mining Association, National Pork Producers Council and Public Lands Council.
 
Here's a copy of the complaint
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