The Tortuous Path of the Waters of the United States
Alan Hahn
Photo lake surrounded by trees in the summer

In order to assess their environmental compliance status, a company may ask a third party, such as a consultant, to review their day-to-day practices. The question to answer is, “Am I operating in compliance with federal, state, and local environmental regulations?”

Whether regulations apply to an activity (including farming) at a company is often a matter of defining terms. What is or may be discharged to air, land or water? What types of chemicals are used and/or stored, and where are they stored? What is the threshold for reporting? What is the business classification (e.g., agriculture, food processor, etc.)? These and other questions must be answered in order to determine compliance status.

One of the more important and potentially-impactful questions agriculture must consider surrounds the question of water. Specifically, whether water that is discharging, or potentially discharging, is regulated.

The issue of a regulated water goes back to the federal Clean Water Act (CWA) of 1972. The language in the original CWA stated the goal was to eliminate pollutant discharges into navigable waters of the United States by 1985. For the last several decades, the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers have attempted to define Waters of the United States, or WOTUS.

This “simple” question of what is and is not a regulated water has been litigated more than once all the way to the Supreme Court of the United States. One of those Supreme Court cases, Rapanos v. United States, was based on a site in Michigan. Our firm provided some of the technical guidance with respect to the groundwater-surface water “nexus.”
In the summer of 2015 under the Obama administration, a new WOTUS definition and rule was issued in what was to be the “final” word. This 300-page final rule was quickly challenged in the courts and the application of this rule remains uncertain nearly four years later.

Defining this WOTUS term is critical to potential applications of specific environmental regulations for farmers as well as other industries, so this is not a minor question of semantics. For example, depending on how WOTUS are defined, it can affect a farmer’s ability to grade or drain farm fields. Under the 2015 definition, a wetland behind a berm or dike was considered adjacent and, therefore, a jurisdictional water. In fact, under the 2015 rule, it would be difficult to make the case for any water to be non-jurisdictional.
The Trump administration, as with the Obama administration, is determined to answer this decades-old question. To this end, on December 18, 2018, the EPA announced their proposed revision to the WOTUS rule.

The EPA Administrator, Andrew Wheeler, said, “The overarching guiding principle that I gave the staff in crafting the WOTUS rule was that I believe any property owner should be able to stand on their property and be able to tell for themselves whether or not they have Waters of the United States on their property without having to hire an outside consultant or attorney.”
The consistent theme from Washington, D.C. under president Trump has been the idea of cooperative federalism. In general, this cooperation is intended to reduce “heavy-handed” federal regulations in favor of allowing states to issue laws and regulations.

The EPA and United States Army Corps of Engineers’ Fact Sheet for the Proposed Revised Definition of WOTUS states in part, “The agencies’ proposal respects the constitutional and statutory limits of federal government to regulate navigable water under the Clean Water Act and gives states and tribes more flexibility to determine how best to manage waters within their borders.”
California decided they would indeed define regulated water in their state. The draft rule in California was met with quick response from the California Farm Bureau Federation. The Farm Bureau stated that the new regulations would affect farming activities across the state.

The California Farm Bureau Federation also stated, “The proposed procedures go far beyond regulating discharges to wetland waters of the state that fall outside the protection of the federal Clean Water Act. They would regulate all waters of the state, including all waters of the U.S. already protected under the Clean Water Act…The procedures would also govern non-wetland waters of the state already protected under other state laws.”

With respect to how the new WOTUS rule may affect Michigan, the Michigan Farm Bureau states, “This new proposed rule means the Clean Water Act will be implemented and enforced the way Congress intended, giving states the ability to regulate their own waters. Michigan already regulates many surface and ground waters as ‘waters of the state’ (see 1994 PA 451) so this rule means farmers in Michigan will not see additional regulation from the federal level.”

One potential complicating factor is the fact that Michigan has new leadership, and they will be implementing their own vision with respect to environmental regulations.  Michigan Attorney General, Dana Nessel, made environmental protection a key campaign issue. She has already removed Michigan from the multi-state lawsuit against the Obama era “Clean Power Plan,” which was intended to reduce carbon dioxide emissions.

Michigan’s leadership under Governor Whitmer and Attorney General Nessel may have something to say about the proposed federal WOTUS changes and how Michigan will address environmental protection in general. Will they rest on the existing framework that defines waters of the state, or will they look to redefine these waters? Time will tell.
Similarly, in Wisconsin, the Farm Bureau Federation applauded the court’s ruling to stop enforcement of the WOTUS rule. They too believe it was an overreach by the EPA, and jeopardizes a farmer’s ability to farm. It is widely viewed the state of Wisconsin has high standards to protect water quality and the state’s natural resources are best managed by the state. In order to maintain these standards, there is a watchful eye in Wisconsin for beefing up their state standards in light of this recent ruling.

Even the most optimistic are cautious with respect to whether we will soon have a workable definition of Waters of the United States from Washington, D.C. Assuming the new rule passes, it may be (again) headed to the U.S. Supreme Court.

Keep an eye on the developments of the WOTUS definition, but perhaps more so, keep an eye on how the state will address this and other environmental issues. As former speaker of the house, “Tip” O’Neill, famously said, “all politics is local.”

Link to full article: here

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