WDAY: The News Leader

Published May 10, 2014, 09:17 AM

EPA proposes rule to regulate ‘significant nexus’ waters; Hoeven says proposal could open producers up for lawsuits

WASHINGTON -- A proposed rule from federal agencies could leave agriculture producers liable for water that flows into navigable waterways.

By: April Baumgarten, Grand Forks Herald, WDAY

WASHINGTON -- A proposed rule from federal agencies could leave agriculture producers liable for water that flows into navigable waterways.

The comment period for the “Waters of the United States” rule is open. The rule would allow the Environment Protection Agency to regulate any water source that flows into a navigable body of water, such as streams, lakes or reservoirs.

But Sen. John Hoeven, R-N.D., believes the rule could lead to lawsuits for farmers and ranchers.

“I’ve talked to Gina McCarthy, who is the director of EPA,” Hoeven said. “I said, ‘Hey, this a total overreach. It’s a problem for our farmers. It’s an invasion on private property rights.’ ”

The U.S. Army Corps of Engineers and the EPA proposed the rule change in early April.

Currently, the rule states the EPA has jurisdiction with any navigable body of water. Concerned producers brought the proposal to Hoeven’s attention, saying “he better take a look at this.”

“I agree with them (the producers). This is a problem,” Hoeven said. “I’m opposed to it. Our farmers are very opposed to it.”

Clarifying Supreme Court rulings

The rule would define “waters of the United States” as all waters that have “a significant nexus to a traditional navigable water, interstate water or the territorial seas.”

In other words, if water flows into a stream that can be navigated by a boat, it can be regulated by the EPA, Hoeven said.

“Clearly this is an overreach,” Hoeven said. “It creates real issues for our farmers and ranchers. Now we have a farmer out there that is doing work on his land and EPA says, ‘We’re going to come in and regulate all the waterflow on your land under this … rule,’ which they don’t have the authority to do.”

The proposed rule change is not expanding authority, EPA official Gregory Peck said. It just clarifies rulings on the Clean Water Act of 1972 from the Supreme Court. The rulings tried to explain the federal government's jurisdiction on water, but actually “made things more confusing,” Peck said. The rulings were reached in the 21st century.

“We have been trying to catch up ever since and trying to provide people with greater certainty and predictability and try to make this difficult legal suit easier to understand,” Peck said. “These are challenging, technical legal policies and determinations. We want to obviously make this as easy for people to understand as we can possibly make it.”

Peck mentioned two court cases: Rapanos v. United States and Carabell v. United States. While the cases gave instruction on how the EPA is supposed to interpret the law, people have little or no information on what the rulings mean until agencies make a determination, Peck said.

“What we are trying to do is give people a lot more predictability about how those decisions get made so they can understand it,” he said.

The rule does cite exceptions. Artificially irrigated areas, artificial ponds for stocking water and small ornamental waters created by excavating or diking dry land are a few mentioned in the document. There are also exemptions for farmers under the Clean Water Act, including 53 practices that do not require a permit, Peck said.

“Everything from plowing, planting, harvesting, building farm ponds or stock ponds -- there is a very long list that is exempt from the Clean Water Act,” he said.

‘Waters of the state’

The North Dakota Century Code has a “waters of the state” rule, which covers all waters within state borders. The Department of Health has the authority to enforce regulations on all streams, lakes, ponds, waterways and all other bodies or accumulations of water on or under the surface of the earth.

The EPA, Corps of Engineers and Health Department all have their own set of rules, said Karl Rockeman, the Division of Water Quality director at the Department of Health in Bismarck.

“There is a little different authority between the states and federal agencies on that,” he said. “Whether they have a need to (approve a new rule), I guess that is something you have to ask them on that, what they need additional rules for.”

The Department of Health has seen few problems with agricultural producers polluting waters, Rockeman said, but he couldn’t speak for the EPA or corps.

‘A federal takeover’

Hoeven has called on Agriculture Secretary Tom Vilsack to stand with him against this rule. U.S. Rep. Kevin Cramer, R-N.D., who is on two House committees that will examine the rule in oversight hearings, also issued a release Friday.

“There has been strong opposition to EPA’s approach due to the devastating economic impacts that a federal takeover of state waters would have,” Cramer said in the statement.

Peck said he understands Hoeven’s concerns, adding that Hoeven is trying to protect the interests of his constituents.

“I have great respect for the senator. I think he has tremendous insights on these kinds of things,” Peck said. “I want to emphasize, though, that the EPA, we are really on the same page. We feel it is really important to get out there and to ensure that this rule does not create new burdens for farmers or ranchers or other types of landowners.”

The comment period for the “Waters of the United States” rule closes June 21, but the EPA may extend that period due to requests, Peck said.

The rule can be found by going to!submitComment;D=EPA-HQ-OW-2011-0880-0001.