Swamp-draining: More on Waters of the United States rule

On May 25, Rick Moran detailed the plight of California-located Duarte Nursery, being sued by the Army Corps of Engineers (ACE) for plowing a small portion of a recently purchased 450-acre farm for the purpose of planting wheat.  Mr. Duarte purchased the land in recognition that significant portions were to remain fallow because they were wetlands protected by the Clean Water Act (CWA).  But, after planting wheat for harvest in 2013 on a portion determined by a paid consultant not to be such protected wetlands, Mr. Duarte was sued by the Corps for "not obtaining a permit to discharge dredged or fill material into seasonal wetlands considered waters of the United States," according to USA Today.  The dredged or fill material would be particles of soil and/or chemicals loosened by plowing.  The amount of the fine sought against Mr. Duarte is some $2.8 million, with his attorney's fees, time wasted, and potential mitigation activities all significant added expenses.

At the heart of the problem is the Obama-era Waters of the United States (WOTUS) rule that sowed the seeds of confusion the day it took effect on August 31, 2015 and one day after a federal district court in North Dakota issued a preliminary injunction against enforcement of the WOTUS rule, in response to a lawsuit brought by the attorneys general of 13 states: North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico.  Designed in collaboration between the Environmental Protection Agency (EPA) and the ACE, the rule was held by that federal court to be "exceptionally expansive" and to "irreparably diminish the States' power over their waters" in extending the scope of federal jurisdiction over the CWA.

Among many concerns regarding the WOTUS rule was the text that stated "waters within 4,000 feet of the high tide line or the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, impoundments, or covered tributary are subject to case-specific significant nexus determinations."  This is quite vague, some fear deliberately so, and in any case open to interpretation and costly litigation.  On a personal note, the installation of drainage tile emptying into an adjacent creek on my northwestern Indiana corn and soybean farm, commonly done in agriculture, could theoretically violate the rule.

The Congressional Research Service (Dec. 29, 2016) reviewed the controversy and options surrounding the WOTUS rule, first noting that the stated intent of EPA and the ACE was to "clarify CWA jurisdiction, not expand it."  Despite that assertion, many agricultural and nonagricultural property owners, real estate developers, and state and local governments continue to fear federal overreach beyond statutory authority to regulate activities that effected "navigable waters" of the United States.  The key issue has always been what constitutes "navigable waters" and what constitutes "tributaries," raising fears of many that any low spot that even temporarily collects water from rainstorms could constitute "navigable waters" because some of such water may eventually end up in a nearby "tributary" and eventually into a river.  Indeed, the North Dakota federal court order noted that the key criterion was the proximity of any such standing water, or water in saturated soil, to a tributary making a reasonable contribution of water to navigable waters. 

The court based its preliminary injunction on two things.  First, the vague definition of tributaries in the rule included "vast numbers of waters that are unlikely to have a nexus to navigable waters within any reasonable understanding of the term."  Secondly, the court noted the lack of a "scientific basis for the 4,000-foot standard" in determining the distance from such navigable waters that would subject a property or a portion of a property to the WOTUS rule.  Many regulatory agencies then interpreted the ruling to apply to only the 13 plaintiff states, leaving enforcement open in the remaining 37 states, including California, as Mr. Duarte is now finding out.  

In response to the apparent intrusion upon state responsibilities and landowner rights, the Trump administration issued on Feb. 28 its executive order directing the EPA and ACE to review the WOTUS rule, and all associated "orders, rules, regulations, guidelines, or policies implementing or enforcing the final rule" for the purpose of revising it or rescinding it.  The purpose of the executive order was to insure "that the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution."  On March 6, the EPA and ACE published a notice in Federal Register of "their intention to review that rule, and provide advanced notice of a forthcoming proposed rulemaking consistent with the Executive Order." 

While it appears that the WOTUS rule shall eventually be rolled back, Mr. Duarte has still his legal battles.  His plight was noted in a May 25 joint press release by House Agriculture Committee chairman Michael Conaway (TX-11) and House Judiciary committee chairman Bob Goodlatte (VA-6), in which they issued a letter to Attorney General Jeff Sessions calling for a review of the former Obama Department of Justice (DOJ) to prosecute the case against Mr. Duarte.  In the letter, they note that DOJ's actions are not consistent with legislative intent and pose questions pertaining to whether such regulatory overreach needs to be corrected through legislative actions.  The latter could include amendments to the Clean Water Act, standalone legislation targeting implementation of WOTUS, and appropriations bill limitations.

Rollback of the WOTUS rule may not spare Mr. Duarte significant legal and other costs, but he may recoup these through his own lawsuit, a related waste of taxpayer's money caused by political malfeasance. 

Draining swamps is always a costly but necessary endeavor.

Dale Leuck is a Ph.D. in agricultural economics, a federal employee who forecasts economic phenomena and provides advice to policy makers, and one with significant background in philosophy, sociology, and involvement in the left-wing political movement of the 1960s and 1970s, from which he has retired, and a producer of corn and soybeans in northwestern Indiana.

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