Monday, October 12, 2015

WOTUS muddies the waters; may stifle property use

(Published in Composting News, August 2015)

By Ken McEntee

The new “Clean Water Rule” defining the “Waters of the United States” (WOTUS) purportedly is intended to clarify enforcement of the federal Clean Water Act (CWA). Instead, many observers say, the new rule, which is set to take effect on August 28, has further muddied the waters, creating new vagaries that can stifle even simple plans of businesses and landowners.
The rule, created by the U.S. EPA and the Army Corps of Engineers, was published in the Federal Register on June 29.

“This rule presents a big problem for anybody who wants to make changes to their property,” said Robert LaGasse, executive director of the Mulch and Soil Council, the national trade association that represents producers of horticultural mulches, consumer potting soils and commercial growing media. 
“Under this rule, making changes to your property is going to require a lot more investigation and engineering to be sure that you’re not going to be in violation of some law. If you have to make corrections to your land in a hurry, you are jumping out of the frying pan and into the fire. The rules are so vague that you might get one answer from one regulator and a completely different answer from another regulator.”

And the penalty for a violation – even an ambiguous one - can be severe: As much as $37,500 per day, and/or criminal prosecution, according to M. Reed Hopper, principal attorney with the Pacific Legal Foundation (PLF), a Sacramento, Calif.-based public interest legal organization. In July, PLF, on behalf of a variety of landowners and organizations, filed the first lawsuit against the Obama administration to block implementation of the new rule.

As of August 18, the PLF suit has been followed by more than 10 more suits challenging WOTUS have been filed, involving more than 70 plaintiffs, including 11 states, filed in 10 different District Courts. The federal government has motioned to consolidate the district court cases in the D.C. District Court.

“The rule,” Hopper said, “is illegal and unconstitutional because it sets no limit on the CWA’s reach, while explicitly expanding it to waters that the Supreme Court has already ruled to be off-limits to federal control. This new regulation is an open-ended license for federal bureaucrats to assert control over nearly all of the nation’s water, and much of the property, from coast to coast.”

Previously, the CWA provided EPA jurisdiction over navigable waters. The new rule would extend that jurisdiction to such waters as Prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California and Texas coastal prairie wetlands. The presence of those bodies on a property generally could give EPA authority over that land.

Fortunately, said Jay Lehr, science director for the Heartland Institute, a Chicago-based research organization, a barrage of lawsuits, injunctions and acts of Congress is likely to block the new regulations from going into effect.

“I think this will be in the courts for years,” said Lehr, the nation’s first Ph.D. in groundwater hydrology who was among the first advocates for the creation of the EPA almost 50 years ago. “With all of the various filers from multiple states and organizations, I can’t imagine that they will have trouble finding judges at the right levels who will place injunctions against the carrying out of this law. If we get lucky and we get a new administration we could put an end to this very quickly. Just about anybody who can get elected on the republican side I think would end it, although Jeb Bush makes me nervous. Even Hillary Clinton may not want to unleash the EPA quite as unreasonably as Barack Obama as a mechanism to reduce the capability of our country.”

Despite his optimism that the new rule, as written, will never take effect, Lehr says business owners should stay informed and proactively fight against it.
“Land and business owners should not be too comfortable about this being shot down,” he said. “I think people are better off being nervous and therefore activated. I would like to see people put their nervousness to use by contacting their representatives. We can’t afford to be passive. If everybody sits back and does nothing, we could end up in a world of hurt.”

What’s the problem?

Presently, through the Clean Water Act, EPA may regulate all navigable waters of the nation. The new rule extends that regulatory power to non-navigable waters – some of which are small and often unconnected to navigable water.

“The rule expressly excludes puddles,” Hopper said. “But it does include Prairie potholes and vernal pools which have the appearance of puddles. It also provides that water within a 100-year floodplain, or water within 4,000 feet of a tributary may be under EPA jurisdiction.”
Whether or not EPA could regulate such water would be determined on a case-by-case basis under the “significant nexus standard.” Significant nexus refers to whether a body of water has, or reasonably could make a connection to navigable waters.

“This is no small thing,” Hopper said. “If this goes into effect, trying to do almost anything on land where any water runs would require you to go through a federal approval process. Basically, if you are within 4,000 feet of a stream and you are going to disturb the land, you will need a federal permit and the cost is prohibitive. On average it would be $170,000 and it would take a couple years to process.”
The vagueness of the 85,000-word rule, Hopper said, is equally problematic.

“If you have wet spots on a property within EPA jurisdiction, and you want to know whether you can do anything on that property, a prudent lawyer is going to tell you that if your situation is not expressly excluded in the rule, that you should get a determination from the Corps of Engineers,” he said. “That creates another problem because up to now the courts have said that if you disagree with that determination you have no right to challenge it.”

Because EPA doesn’t have the resources to enforce the new rule on everybody, LaGasse said, enforcement would likely become a complaint-driven.

“It’s something that could pop up anywhere at anytime, and enforcement would be uneven,” he said.

General runoff, Hopper said, is typically excluded from regulation.
“But if it is a point source where they can point to a specific conduit as a discharge then it is questionable,” he said. “This has come up in situations like in manure piles at a dairy. The agency has gone both ways on this, so you’re taking your chances. That’s the problem. There is no clarity.”
Lehr calls the rule “shear insanity.”

“I have been involved in this since day one and I have yet to find a single human not connected with an environmental activist organization who thinks this makes sense” he said. “It isn’t about clean water. It’s about the EPA taking over every stitch of land with water on it that they possibly can.”

Impact on compost and mulch

The U.S. Composting Council, the national trade association that represents compost producers, isn’t concerned about the new rule, according to Cary Oshins, director of education for the organization.

“I don’t think this will make much of a difference for compost sites,” Oshins said. “This rule really just refines the definition of waters of the U.S. We are already strong proponents of using best management practices for storm water and contact water management. Since the rule encourages the use of green infrastructure, which is a strong and growing market for compost, this is overall a good rule change.”

Will Bakx, founder of Sonoma Compost Co., in Petaluma, Calif., disagrees.

“I don’t feel so comfortable about it,” said Bakx, vice chair of the California Organic Recycling Council and an executive board member of the California Compost Coalition. “I think neighbors have been provided with another avenue to go after composting facilities.”

Bakx has first-hand knowledge about that.
In May, his 22-year-old operation was ordered permanently shut down to settle a federal water quality suit filed by a neighborhood group. The suit, which involved storm water runoff into a nearby creek, cited violations of the Clean Water Act, which regulates the discharge of any pollutant into waters of the U.S.

“Our situation had less to do with water quality than politics,” Bakx said. “The Clean Water Act was used as an excuse to shut us down.”
Which is precisely what concerns WOTUS opponents like Lehr and Hopper.

“The worst case scenario is the cost of fighting it legally when the EPA comes at somebody without just cause,” Lehr said.

Although Sonoma’s problems preceded the new WOTUS rule, Bakx said the new rule could make it difficult to operate a composting facility. Waste discharge requirements for compost operations, now under consideration by the California Water Boards, he said, are directly impacted by WOTUS.

“Although they say otherwise, the state guidelines basically require a zero discharge facility,” Bakx said. “It will present significant costs to operators. It’s ironic, isn’t is, that there is a mandate to divert organics from the landfill, then they make it expensive to do it. If you’re in an area where landfill tipping fees are $25 a ton, how can you set up a composting facility that will cost you $50 a ton to operate?”

Implementation unlikely

Lawsuits like the one filed by PLF on behalf of the landowners, state cattlemen’s associations of California, Washington and New Mexico and others, Lehr said, will likely prevent WOTUS from ever going into effect.

On August 12, the Southern District Court of Georgia held a hearing on the preliminary injunction motion filed by 11 states opposing the rule. Chief Judge Lisa Godbey Wood said she would rule by the WOTUS implementation date of August 28 on the preliminary injunction motion filed by 11 states opposing the rule.

“I am the world’s leading optimist so it is not conceivable to me that this could ever become the law of the land,” Lehr said.

This article, by Composting News editor Ken McEntee, was originally published in Mulch & Soil Producer News.

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