The EPA’s troubled waters

This commentary originally appeared in the National Review on June 5, 2015.

"Clarity!” has been the battle cry of the EPA over the last year as it put the final touches on its expansive and overreaching definition of “waters of the United States” (or “WOTUS”). And yet, a week after the final rule was published, the only clarity the EPA has provided is its intent to snatch up every piece of land that can channel, pool, or absorb water and include it within its newly minted jurisdiction.

The effects of this rule are both far-reaching and disastrous. Tributaries make up only one aspect of this unconstitutional overhaul of the Clean Water Act, but they provide useful insight into the impractical mind of the EPA.

The amended definition of a “tributary” will expand the EPA’s dominion to ephemeral flows — or, as an ordinary person might know them, dry lands where water sometimes flows after heavy rains — as well as many common drainage ditches. If a tributary contributes any flow at all, regardless of frequency or volume, to a downstream water, it is now within the EPA’s purview.

Practically, this means that the average drainage ditch, the channels between rows of planted crops, and the land beneath the crudely formed streams from the torrential rains that carried away portions of central Texas over the last several weeks are now all subject to federal jurisdiction if water from them can be carried downstream at any point. To build one’s home, to plant crops as a means of livelihood, to erect a fence or build a road, the average person will now need to seek a permit from the Corps of Engineers.

A permit can cost into the hundreds of thousands; or you can gamble, proceed with your development plans, and risk exposure to fines up to $37,500 per violation, per day.

Making matters worse, there is no clear ability to appeal a Corps of Engineers decision about what is or is not a “navigable water.” Currently the U.S. circuit courts are split on whether or not a decision made by the Corps is redressable. This leaves property owners who are within the jurisdiction of unfavorable circuits with no ability to recoup costs from litigation or the effective loss of their property.

Consider the plight of farmers — specifically, corn-producing farmers. If any feature on any property is deemed subject to EPA jurisdiction, like the channels between rows of corn, the EPA will prohibit any action that causes pollution to enter that feature. This isn’t limited to actual pollution, like dumping waste, and it isn’t necessary that any harm to the environment actually occur. All that is required is that any amount of biological material or chemicals — sand, dirt, and dust included — however minuscule, fall or be placed into a jurisdictional water. This prohibition applies year-round, regardless of whether water is present.

If it seems unlikely that the EPA or Corps of Engineers would make such a determination about a field tilled for production, rest assured they will — and have. Just ask the folks in Tennessee, where the Corps found a “bed, bank, and ordinary high water mark” on a parcel of dry farmland, tilled into neat rows. To our federal agencies, this is a waterway.

So if the Corps is poised to claim jurisdiction over our vast expanses of farmland — or “waters” — why is this specifically relevant to corn producers? Because any application of a fertilizer or pesticide will require a Clean Water Act permit. Some states provide general permits, which “may” satisfy the EPA’s pesticide requirements, but many do not. And even in states utilizing general permits, many exclude farming use. Further, no general permit exists for fertilizer. Farmers of all types will be pushed into individual permits, which can easily take months, sometimes years, and will cost thousands of dollars to acquire.

While the comment period on this new regulation was open, the EPA rushed to assure farmers that they would be exempted if they conduct “normal” farming or ranching activities. This was misleading, to say the least. Activities are considered “normal” if they are part of an ongoing or established farming or ranching operation at an existing location. Since the agency interpretation that is being relied upon came out in 1977, the agencies have taken the position that new operations require a permit unless they have been “ongoing” since 1977.

Any farm that has not been ongoing for almost 40 years must seek a permit. This means that over 5 million acres of once-protected conservation land that was turned into corn-producing farmland over the last decade must get a permit to meet the mandates set by the EPA’s renewable fuel standard (RFS). The Corps of Engineers is under no compulsion to issue permits if it chooses not to. But why would it not issue these necessary permits to corn-producing farmers?

Spring rains bring fertilizer runoff from farms. The runoff finds its way into the Mississippi River and the Gulf of Mexico, creating a hypoxic zone where low concentrations of oxygen suffocate and kill animal life in the area. It is no secret nor a scientific stretch that the increased land use from corn production for ethanol has caused the dead zone in the Gulf of Mexico to expand. But there is no easy solution to this problem.

Lest anyone rush to champion organic farming as the solution to this problem, while the majority of states consider non-synthetic pesticides and fertilizers to be “organic,” under the EPA’s expansive definition of pollutants, they would still be prohibited. Even if organic fertilizers weren’t disallowed, consumers worldwide would ultimately bear the significant increase in food and transportation costs, and the production ability for farmers with corn crops would drop drastically.

Nitrogen-based fertilizers are the leading cause of hypoxic zones, and simply ceasing to use them is not a solution. Nitrogen must be gained in other ways to ensure healthy and large crop yields. This requires many organic farmers to practice crop rotation in order to return enough nitrogen to the soil for corn growth. This means less corn can be grown year round from any given plot of farmland.

Unsurprisingly, inside the EPA, the left hand does not appear to know what the far-left hand is doing. Two days after the ink dried on the final WOTUS rule, the EPA released its proposal for expanding the RFS through 2016. Together these rules will require more corn, more land, and more permits, with fewer property rights and less freedom — leaving farmers in the crosshairs of bad policy.

Leigh Thompson is a policy analyst with the Armstrong Center for Energy and the Environment at the Texas Public Policy Foundation.