WOTUS Rule Outlook

OMAHA (DTN) -- As more than 30 states, numerous agricultural and other industry groups launched a multi-faceted legal battle in 2015 to turn back the waters of the United States (WOTUS) rule, the little-discussed reality is the rule could be fully implemented long before a court addresses the law's validity.

The chances of changing the rule in 2016 may seem akin to picking the right lottery numbers because a presidential election year likely stands in the way of Congress fixing the rule defining jurisdictional waters.

The waters of the United States rule redefines waters considered to be jurisdictional through the Clean Water Act. It was designed to provide more detail and clarity as to which waters may be subject to federal permitting.

Agriculture groups pushed for a legislative fix in 2015, but the efforts were unsuccessful in the face of a politically charged environment and a presidential administration standing firmly behind the rule.

If it ultimately goes to the Supreme Court, it could be eight to 10 years before it is resolved, said Don Parrish, senior director of regulatory relations for the American Farm Bureau Federation. "If the agency is able to implement the rule by then, think of the damage it causes. It is why we pushed to make Congress fix it."

There are some 50 to 100 parties involved in multiple lawsuits. A district court in North Dakota last year rebuked the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers ahead of granting a stay to 13 states to prevent the rule's implementation. That was followed by a national stay issued by the U.S. Sixth Circuit Court of Appeals in Cincinnati, Ohio -- all in an effort just to determine jurisdiction.

This warns of how long it could take to go through the legal fights: The courts consumed nearly half of 2015 only on the question of jurisdiction and not on the legal merits of the rule -- something that will be far more complex.

Courts already have declared the rule may be illegal in a variety of rulings issued last year, though judges' comments were made as part of rulings that had nothing to do with the actual legal merits of the rule.

"If the Sixth Circuit decides that it has jurisdiction to hear the merits of the claims, it will most likely keep the national stay (on the rule) in place --- through most, if not all, of 2016 until the cases are completely disposed of," said Paul Beard, a Clean Water Act attorney with Alston and Bird, LLP based in Los Angeles, who successfully argued a wetlands permits case before the United States Supreme Court.

ISSUES AT HAND

The issues argued in court center primarily on whether EPA violated the Administrative Procedures Act in developing the rule. The high court may at some point be asked to focus on broader constitutional questions with the Clean Water Act.

Although the legal fight appears to be long-term, Beard said the Supreme Court might consider a petition for certiorari even this year to hear the case. Although the waters of the United States rule may be of national importance, the odds are long for the Supreme Court to agree to hear cases. According to Findlaw.com the Supreme Court receives about 10,000 petitions for certiorari every year, but only hears about 80 of them.

"The WOTUS rule has a better-than-average chance of getting to the Supreme Court," Beard said. "The reason is that the rule has significant, national implications for every landowner in the country. The issues the court might consider include whether the Clean Water Act authorizes the rule -- and, if so, whether the act exceeds Congress' powers under the commerce clause. It is conceivable that the court could consider a petition to the challenge in its 2016-2017 term -- even in the fall of 2016."

There also may be procedural issues about how the Corps and EPA formulated and adopted the rule, he said. That could dispose of the legal challenge "even without any consideration of the substantive merits" of the rule, Beard said.

PROTECTING FARMERS, RANCHERS

Perhaps the best tact farmers and ranchers can take is to assume the new rule already is in effect. This means landowners should seek professional advice on what may or may not be considered waters of the United States on their land.

Officials with the American Farm Bureau Federation told DTN/Progressive Farmer they are telling members to pay particularly close attention to three areas of concern with the rule.

That includes being careful when using sprayers and spreaders near water. With the new rule, farmers run the risk of triggering a discharge into waters of the United States even while engaging in exempted ag activities.

Second, EPA has implied agriculture exemptions are limitless, but AFBF officials say they are specific. Corps agents from district to district can interpret exemptions differently than their counterparts. For example, the new rule exempts plowing in the upper 12-inch root zone. Even that can be questioned by the agency, AFBF's Parrish said.

Third, farmers can be subject to the Clean Water Act if they change land use in any way. The new rule leaves wiggle room for federal agencies to interpret actions taken on the farm.

For example, if a producer changes crops from wheat to corn production on a tract of land, federal agencies may interpret and have interpreted that as a change in land use subject to CWA determinations.

Another concern is even if farmers invest in professional engineers to complete Clean Water Act determinations they are good for just five years -- increasing the long-term costs to do business on the farm.

"We would probably encourage producers to know before they ask (federal agencies)," Parrish said. "Call some consultants -- although it is not cheap."

Beard said it is imperative to resolve the legal status of the Clean Water Act.

"The state of the act is in disarray," he said. "The most important aspect of that law -- which waters are actually covered -- is utterly confused and mired in a major legal battle. The act fails adequately to define the limits of the Corps' and EPA's jurisdiction, let alone in a constitutionally sufficient way -- i.e., within the bounds of the commerce clause. Taking advantage of the vagaries of the statute, the agencies bestowed upon themselves substantial discretion to decide, on a case-by-case basis, which waters they'd assert jurisdiction over and which they wouldn't."

Farmers, ranchers and other landowners, Beard said, "must tread very carefully" to minimize their exposure to the Clean Water Act.

In some cases, he said, a landowner could benefit from a jurisdictional determination from the Corps. "In every case, if there is even the slightest doubt, the landowner should consult a land-use attorney specializing in Clean Water Act permitting," Beard said.

If the new rule is allowed to stand, he said future administrations may be left to clarify jurisdictional waters.

"This, of course, would require a new administration that is significantly more sensitive to the limitations set forth in the Constitution and the act itself," Beard said, "as well as the impacts of regulation on farmers, ranchers and other landowners."

Danielle Quist, senior counsel for public policy for the American Farm Bureau Federation, said a close examination of Clean Water Act enforcement in the years to come will reveal more about how the new rule affects private property owners.

"With enforcement actions and permits we'll see what words mean," she said. "In the end the government decides jurisdiction. Take a look at the activities. With the uncertainty of it all farmers can't plan. It is a broad and vague rule."

Outgoing AFBF President Bob Stallman didn't mince words when he spoke about the WOTUS rule in his final address Jan. 10 to members at the annual convention being held in Orlando, Florida. He called it "one of the worst examples of over-regulation."

"When rainwater runs across a farm field is all it takes to allow federal agencies to tell you that you cannot use your land, that is government regulation run amok," Stallman said.

To see how one California farmer has been affected by the Clean Water Act and ended up in multiple federal lawsuits, check out http://bit.ly/….

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Editor's Note:

Each year, DTN presents an outlook series on what is expected for the year ahead in various areas of agriculture. This is the seventh story in a series DTN is running that looks at what farmers can expect as the hot topics for 2016 in areas such as farm finance, land prices, ag and the environment, agricultural policy, crop inputs, livestock, transportation and others. We welcome your feedback on what you think the year will be like at talk@dtn.com.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @ToddNeeleyDTN

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