UPDATED: Water rule goes forward

EPA says no changes will come from water rule implementation Aug. 28 for those states not involved in ND lawsuit.

A majority of the states will see the waters of the U.S. rule go into effect Aug. 28 after two judges dismissed an injunction request while a North Dakota judge enjoined the rule for the 13 states that requested it.

Since publication of the rule in the Federal Register, numerous lawsuits were filed challenging the regulation, and several parties sought preliminary injunctions to delay implementation of the rule.  This week, United States District Courts in Georgia and West Virginia agreed with the Environmental Protection Agency and the Army Corps of Engineers that legal challenges to the Rule could only be brought in the United States Court of Appeals for the 6th Circuit and therefore denied the requests for preliminary injunction. 

On August 27, the District Court for North Dakota found that it had jurisdiction and granted the request of a number of States and issued a decision preliminarily enjoining the Clean Water Rule. (See related story.)

EPA said the rule will still go into effect for all those states not party to the North Dakota lawsuit.

In a Webinar hosted by EPA and the Corps on Thursday, Ken Kopocis, head of EPA’s Office of Water, again gave assurances that once the rule goes into effect farmers will not see any changes to their permitting requirements or have their land or practice become jurisdictional.

As of Aug. 28 when the rule goes into effect, Kopocis said a farmer has to do nothing differently than they would have done the day prior. “The jurisdictional status, particularly for agricultural land, we believe is unchanged from what existed under the old rule and what will exist tomorrow under the new rule.”

He added new specific exclusions have been made including artificially irrigated areas that revert to dryland, artificially constructed lakes and ponds such as farm stock watering ponds, irrigation ponds, fields flooded for rice growing, cooling ponds.

He also said erosional features do not meet the definition of jurisdictional. He even explained features, such as puddles and gullies, are still considered dryland and not jurisdictional. He said many agricultural areas around the country experience seasonal precipitation which will cause areas to flood or have water visible on the surface. ‘That does not alter their status [as jurisdictional] as dryland just because water may be happening to collect on them at a given point of time,” he said.

“Normal farming” considerations have also been important and many fear that if cropland had not been converted prior to 1977 that it would fall under new jurisdiction. Kopocis eased those concerns saying the agency will instead by focusing on the activities which bring an area into farming or ranching that involve the discharge of dredged building material that may require a permit if it’s being undertaken for the first time.

When asked whether cattle will be able to access a stream as a water source, Kopocis said the new rule will not affect farmers’ ability to do so if that’s what they’ve previously been doing.

Gary Baise, an attorney at OFW Law firm, said he doesn’t expect an immediate change in the way EPA does business with farmers. However, this spring when farmers to start planting and spreading fertilizer that could change if environmentalists seek to use the new rules to force farmers to change their practices.

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