Eye On The Outside: WOTUS

Issues facing the livestock industry, like bad dreams seem to repeat themselves and show back up sometimes years after they were thought to be resolved or at least to be deemed less important compared to other things that crop up to be faced by those in agriculture (pun intended).

Examples include packer concentration going all the way back to the early 20th century, mis-informed “environmentalists” claiming destruction of natural resources by farmers and ranchers and interference in the business and process of agriculture by politicians looking for quick solutions to intricate problems associated with growing food for a hungry world in the most complex ecosystems and environments on the planet. One of those perennial issues has been keeping a firm hold on my attention for years. Most of you by now have heard or seen the term WOTUS. This acronym stands for “Waters of the United States,” which if found to fit the definition of a WOTUS, are subject to the jurisdiction, under the Clean Water Act (CWA), of the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps). Such jurisdiction is not universally bad; after all, we all want and need clean water. However, when coupled with jurisdiction over the land watered and occupied by a jurisdictional water, it can result in overreach and excessive regulation by the federal government in an area traditionally left to the individual states or regions in the case of inter-state waters.

For the past five years I have been a part of a National Cattlemen’s Beef Association (NCBA) working group trying to inject some common sense into the question of what a WOTUS is. This question has been around almost since the beginning of the passage of the CWA in 1972. Originally, the CWA was intended to prevent the discharge of pollutants into the surface waters of the United States. Rivers, streams, and lakes were obviously the intended targets of the law. Over time, the regulators at EPA started to exercise jurisdiction over farm ponds, irrigation ditches, ephemeral streams, prairie potholes and vernal pools in California that dried up over a summer. This led to an effort in the mid-1980s to begin to define WOTUS which was lacking in the original CWA. The United States Supreme Court decided a case, Rapanos v. U.S. 547 U.S. 715 (2006) against a man who it was claimed had violated the CWA by discharging fill into a wetland without a permit. In the decision, because the court could not reach a clear conclusion on what a WOTUS was, the Court told the EPA the agency needed to define WOTUS. In 2015 the EPA finalized a rule which expanded federal jurisdiction over isolated water bodies, meaning they were not actually tributary to a WOTUS and ephemeral water courses. Significantly, ephemeral meant after a rainstorm to the EPA. While this could be geographically rationalized in the desert southwest among other places, it did not consider snowmelt features in the Intermountain West and the Great Basin.

This rule created much confusion among farmers and ranchers across the entire country. For instance, there were no exemptions for traditional agricultural practices like farm ponds and prior converted crop land which had been traditionally exempted by the EPA in its analysis of jurisdictional waters. Therefore, the 2015 rule was more onerous and burdensome for agriculture. The Trump Administration repealed the 2015 rule and finalized the “Navigable Waters Protection Rule” in 2020. This rule returned the agricultural exemptions and did not add isolated features or ephemeral streams to federal regulation all of which made the rule less ambiguous and more predictable for a rancher to assess rather than hire consultants and lawyers. NCBA engaged in litigation to protect this rule in several federal courts across the country, but a Federal Court in Arizona struck down the NWPR which has opened the door for the EPA to enter yet another rule making effort. I and other representatives of NCBA and many other organizations have testified several times to challenge the EPA to save some of the agricultural protections and note the geographical differences necessary to create a balanced and predictable rule. The EPA has a “Farm, Ranch, and Rural Advisory Committee” (FRRCC). This committee recently recommended EPA develop a clear and limited WOYTUS definition which necessarily protects key exemptions for common agricultural features and isolated, non-perennial waters. NCBA has endorsed and supports the FRRCC’s recommendations. The new rule has not been written yet, but you can be sure I, and many others, will be carefully watching the EPA as it tries the latest in what now has been a fiftyyear effort to define a jurisdictional WOTUS. I’ll see you soon.

Nevada Water Solutions LLC

Water Rights / Resource Permitting Expertise

Thomas K. Gallagher, PE 775•825•1653 / FAX 775•825•1683 333 Flint Street / Reno, NV 89501 tomg@nevadawatersolutions.com

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