By Mike Barnett
$37,500. Per incident. Per day. Per violation.
Does that grab your attention? It should.
That’s what you could be fined by the Environmental Protection Agency (EPA) if you have an unauthorized discharge of “pollutants” from your farmland that requires a Clean Water Act (CWA) permit. It’s all part of the new rule recently issued by the EPA and the Army Corps of Engineers defining waters of the U.S. (WOTUS). It expands the federal CWA jurisdiction over many landscape features found on farm, ranch and forest lands across the nation. The rule is expected to go into effect Aug. 28.
Here are five things you should know:
1) Should I be concerned? You bet! 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. The rule is so vague that EPA bureaucrats will be able to “make it up as they go along.” It will be out of compliance if they say it is. Worse still, government or citizens can reach back five years and impose penalties on a discharge.
2) What qualifies for WOTUS? Under the broad language in the rules, just about any feature of your land could be identified as WOTUS. Easy to identify are navigable waters, including wetlands; rivers, streams and creeks that flow into navigable water. From there, you are playing a guessing game with a powerful regulator. They like it that way.
3) What triggers CWA liability and permit requirements? The application from any sprayer, spreader or nozzle of pesticides, fertilizers or manure and manure products requires a section 402 NPDES permit from state regulatory agencies or the EPA, even if the WOTUS is dry at the time of application. In addition, a section 404 “dredge and fill” permit by the Corps of Engineers may be required for grading, laser leveling, terracing, plowing or deep ripping or construction and maintenance of roads, fences, ditches, ponds and culverts. A permit to plow? It doesn’t look all that far-fetched.
4) What are my options? To minimize the risk of violating CWA, farmers and ranchers can:
- 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.
5) Where can I get more information?
- Request a JD from the Corps of Engineers by contacting your local Corps office. Here is more information on the JD process. 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 http://1.usa.gov/1MzZh15 and http://1.usa.gov/1hOhkFk.
- For more information on section 404 “dredge and fill” permitting and exemptions, see http://1.usa.gov/1E75ekK and http://1.usa.gov/1JkF7Tg.
Farmers and ranchers are navigating troubled waters with this new rule. It is important to remember that each farmer and rancher is responsible for assessing his land to ensure his practices are in compliance. Ignorance is not an excuse for the potential of exorbitant fines or civil suits.
Experts say it is unlikely EPA will go immediately into an enforcement campaign. Pending legislation in Congress has the regulators keeping their heads low, they say. Also, there are many suits against the rule in the court, including one filed in a federal district court in Galveston by Texas Farm Bureau, Matagorda County Farm Bureau, American Farm Bureau Federation and other groups.
The fact is the rule is here. And unless it is changed by Congress or the courts, it will someday be enforceable. Regulatory creep will set in. You could be affected.
It’s always good to be prepared!