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4 important tips for navigating the rocky waters of WOTUS rule

At press time, the courts had yet to make a decision granting an emergency injunction over the Waters of the United States (WOTUS) rule, which is set to go into effect on Friday, Aug. 28. 

READ: Court hasn’t ruled on WOTUS injunction

More than 30 states have filed lawsuits against EPA and the Army Corps of Engineers over the controversial WOTUS, which many believe is too far-reaching and unlawfully expands the agencies’ powers under the Clean Water Act. The coalition of states hope the lawsuits will ultimately overturn the rule and prove the EPA has reached far beyond its scope and unlawfully stepped into the private lives of American citizens.

In a recent press conference, North Dakota Attorney General Wayne Stenehjem said, “A federal rule of this scope and significance needs thorough judicial review before costly and disruptive burdens are imposed on North Dakotans. The rule is unnecessary, unlawful, and will do nothing to increase water quality in our state.”

READ: 28 states want WOTUS implementation delayed

An injunction can only be invoked if the states can prove jurisdiction and irreparable harm. As a rancher facing the prospect of EPA seeking a power grab and looking to micromanage landowners, I see several ways WOTUS, if allowed to be implemented, would do irreparable harm to not only the agriculture industry, but also homebuilding, oil, gas, and mining.

Here are four things you need to know about WOTUS before the sun rises on Aug. 28:

1. Businesses will be implicated by WOTUS and economies will suffer.

Not only will states be burdened with extra costs of implementation, but it will become increasingly complex to obtain necessary permits for doing business, and will put industries at risk as they try to follow previously established state regulatory programs and the new conflicting federal requirements. The complexity of the new rule, combined with the broad-sweeping manner in which it’s written, not only makes following the rules difficult but also gives much flexibility to agencies to decide whether or not you’re in compliance of the rule.

West Virginia Attorney General Patrick Morrisey calls the rule "regulatory lunacy."

Morrissey says, “This rule would infringe on citizens’ property rights and force them to pay thousands of dollars to do basic work around their homes, farms and workplaces. This rule expands a scheme whereby property owners have to ask the EPA for permission to do yardwork.”

READ: WOTUS: Woe to us

2. WOTUS reference to “navigable waters” is deliberately vague.

According to Forbes, “The Clean Water Act (CWA) gives the federal government jurisdiction over navigable waters, and this has long been understood to include a certain amount of upstream (tributary) water in order to protect larger water features. However, ‘navigable waters’ is defined as ‘the waters of the United States, including the territorial seas,’ which is where interpretations start to get muddy. Years of jurisprudence have created a near impenetrable morass of definitions and elemental tests.”

So what is a navigable water, and how might the water found on your ranch now be under the jurisdiction of the EPA? Well, an example might be small, temporary ponds, wetlands, rivers, streams or creeks. It’s unclear whether a pond is significant enough to be a regulated body of water under the new rule. Because of how vague WOTUS is written, each body of water will be determined on a case-by-case basis, requiring much time, money, geographic span from the agencies and a lot of stress for landowners questioning the scope of the new rule.

READ: The WOTUS rule: Overdue necessity or unnecessary burden?

3. Violate WOTUS and pay $37,500 per incident per day.

Yes, you read that right. A whopping $37,500 is the daily fine for every incident in which you have an unauthorized discharge of pollutants from your ranch that requires a Clean Water Act permit, according to Mike Barnett, Texas Farm Bureau director of publications.

“Unpermitted discharges of pollutants into WOTUS are unlawful and carry large potential penalties, even if the farmer or rancher has no knowledge of that feature of WOTUS,” writes Barnett.

Barnett warns that farmers and ranchers will need a section 402 NPDES permit from state regulatory agencies or the EPA for applications of pesticides, fertilizers or manure from any sprayer, spreader or nozzle. Even worse, a permit may be required for grading, laser leveling, terracing, plowing, deep ripping, construction, maintenance of roads, fences, ditches, ponds and culverts.

“A permit to plow? It doesn’t look all that far-fetched,” he said.

READ: 5 things you should know about the EPA WOTUS rule

4. How do I stay in compliance?

Barnett lists seven tips for minimizing the risk of violating the new rules under CWA including:

• Request a Jurisdictional Determination (JD) from the Corps of Engineers to definitively identify WOTUS on your farm or ranch.

• Assume that certain features are WOTUS and avoid anything that might result in a discharge to those areas.

• Seek clarification from the Corps of Engineers about whether your dirt-moving activities in or near WOTUS qualify for one of the section 404 permitting exemptions.

• Apply for a Section 402 or 404 permit when conducting activities that could result in a regulated discharge.

• Request a JD from the Corps of Engineers by contacting your local Corps office. Be aware that the JD form on the website at the time of this writing is not based on criteria for the new rule.

• For more information on the section 402 permitting process, see and

• For more information on section 404 “dredge and fill” permitting and exemptions, see and

Are you worried about the updated CWA rules? Are you concerned about being in compliance with this vague ruling? Are there any navigable waters on your ranch that you fear may or may not follow under the definition of WOTUS? Share your thoughts and concerns in the comments section below.

The opinions of Amanda Radke are not necessarily those of or Penton Agriculture.


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