Tuesday, February 19, 2019

Big EPA Developments – WOTUS and Advisory Committees

Overview

In the past few days, two big developments of importance to agriculture have occurred. Both involve the Environmental Protection Agency (EPA).  Last week, the EPA published its proposed rule redefining “waters of the United States” (WOTUS), triggering a 60-day comment period.  In another development, a federal trial court ruled that the EPA has the authority to bar persons currently receiving grant money from the EPA to serve on EPA scientific advisory committees.  Both of these developments are important to agriculture.

Recent EPA developments of importance to agriculture – that’s the topic of today’s post.

WOTUS Redefined

In prior posts over the past couple of years, I have detailed the continuing saga of the WOTUS rule – first as proposed by the Obama Administration’s EPA in 2015; the subsequent court battle; the new proposal by the Trump Administration’s EPA in 2017; more court litigation; and now a revised proposed definition that attempts to clarify what waters are subject to federal jurisdiction under the Clean Water Act (CWA). 

On December 11, 2018, the EPA and the U.S. Army Corps of Engineers (COE) proposed a new WOTUS definition.  That new definition was published in the Federal Register on Feb. 14, 2019.  82 FR 34899 (Feb. 14, 2019).  The proposed definition is subject to a 60-day public comment period that will close on April 15, 2019.  The publication of this new definition is in line with President Trump’s Executive Order of February 28, 2017, that the EPA and the Corps clarify the scope of waters that are federally regulated under the CWA. 

Drainage tile and ephemeral streams.  Under the newly proposed WOTUS definition, groundwater that drains through a farm field tile system is not a point source pollutant subject to federal control under the CWA’s National Pollution Discharge Elimination System  (NPDES).  This specificity shuts the door on the argument set forth in and rejected by the Iowa Supreme Court (construing Iowa law) in a 2017 decision.  See Board of Water Works Trustees of the City of Des Moines v. Sac County Board of Supervisors as Trustees of Drainage Districts 32, 42, 65, 79, 81, 83, 86, et al., No. C15-4020-LTS, 2017 U.S. Dist. LEXIS 39025 (N.D. Iowa Mar. 17, 2017)Also excluded from the WOTUS definition are ephemeral streams (those only temporarily containing water) and diffuse surface runoff that doesn’t enter a WOTUS at a particular discharge point.  

Ditches, PC wetland and farmed wetland.  The proposed rule also excludes ditches from the definition of a WOTUS unless the ditch is connected to a tributary of a WOTUS.  A tributary is defined as “…a river, stream or similar naturally occurring surface water channel that contributes ‘perennial or intermittent’ flow to a traditional navigable water or territorial sea in a typical year…either directly or indirectly through other jurisdictional waters such as tributaries, impoundments, and adjacent wetlands…”.   What is a “typical year”?  For starters, it doesn’t include periods of drought or extreme flooding.  It is one that is within the “normal range of precipitation” over a rolling 30-year period for a “particular geographic area.”  Tributaries “…do not include surface features that flow only in direct response to precipitation, such as ephemeral flows, dry washes, and similar features.”  In other words, dry channels are not “tributaries.”  There must be more than an insubstantial water flow to support federal jurisdiction as a tributary to a WOTUS.

Prior converted (PC) cropland is also not a WOTUS under the proposed WOTUS definition.  A prior converted wetland is a wetland that was totally drained before December 23, 1985.  However, farmed wetland can still be subject to regulation by the USDA.  A “farmed wetland” is a wetland that was manipulated before December 23, 1985, but still exhibits wetland characteristics. Drains affecting these areas can be maintained, but the scope and effect of the original drainage system cannot be exceeded.  See, e.g., Barthel v. United States Department of Agriculture, 181 F.3d 934 (8th Cir. 1999).    

One unanswered question is whether the EPA will accept federal farm program wetland mappings.  It would be nice if the new WOTUS definition would include the same standard as USDA on this issue.  If not, on this issue, farmers will be subject to two distinct federal agencies with two distinct standards.  

Artificial irrigation, lakes and ponds.  The proposed WOTUS definition also would exclude areas that are artificially irrigated.  This is an important exception for rice and cranberry farmers.  See, e.g., United States v. Johnson, 467 F.3d 56 (1st Cir. 2006).  Likewise, excluded are artificial lakes and ponds (a waterbody that doesn’t have a natural outflow) that are constructed in upland areas.  This would include such structures as farm ponds, stock watering ponds, water storage reservoirs, settling basins and log cleaning ponds.  This follows the rationale of a U.S. Supreme Court opinion in 2006.  See Rapanos v. United States, 547 U.S. 715 (2006).  The only catch is if they are covered under other sections of the proposed rule.  For example, a lake or a pond that is “susceptible” to use in interstate or foreign commerce or is subject to a tide’s ebb and flow is deemed to be a WOTUS.  See 33 C.F.R. §328.3.  Likewise, a lake or a pond that contributes “perennial or intermittent flow” to navigable waters of the United States is deemed to be a WOTUS.  What does that mean?  It would appear to mean that only those lakes and ponds that actually have some material influence on navigable waters satisfies the definition of a WOTUS.  Id. If there is no perennial or intermittent flow being contributed by the lake or pond, then the lake or pond is not jurisdictional (at least at the federal level).  But, what about headwater streams that are made artificially perennial by subsurface drainage systems?  Are those to be excluded from the WOTUS definition?  Also, how are ditches that have been excavated into groundwater to be treated if they don't receive perennial surface flows?  Hopefully these two questions will be clarified.

In addition, other water-filled depressions (such as those created by mining or construction activity when fill, sand or gravel is excavated) are excluded from the definition of a WOTUS if they are in uplands.  They are not excluded if they are created in a wetland area to begin with.

Hydrological connections.  The proposed definition says that “[a] mere hydrological connection from a non-navigable, isolated, intrastate lake or pond…may be insufficient to establish jurisdiction under the proposed rule.”  While that seems to be a bit vague, the proposal does state that flooding that occurs once in 100 years into a WOTUS does not trigger federal jurisdiction.  What is clear, however, is that “…ecological connections between physically separated lakes and ponds and otherwise jurisdictional waters” are not under federal control.  This is a major point concerning the proposed WOTUS definition. 

EPA Advisory Committees

A recent federal court decision, Physicians for Social Responsibility v. Wheeler, No. 1:17-cv-02742 (TNM), 2019 U.S. Dist. LEXIS 22276 (D. D.C. Feb. 12, 2019), ended an Obama-era EPA policy of allowing EPA advisory committee members to be in present receipt of EPA grants.  When President Trump took office, he nominated Scott Pruitt to be head of the EPA.  After Senate confirmation, Secretary Pruitt issued a directive regarding membership in its federal advisory committees specifying “that no member of an EPA federal advisory committee be currently in receipt of EPA grants.” The directive reversed an Obama-era rule that allowed scientists in receipt of EPA grants to sit on advisory panels.  That rule was resulting in biased advisory committees stacked with committee members that opposed coal and favored an expansive “Waters of the United States” rule among other matters. The plaintiffs were a group of individuals and organizations who were receiving EPA research grants, and were either serving on an EPA advisory committee or hoped to serve on a committee. They claimed that the new directive illegally barred grant recipients from being members of the advisory committees, and filed suit to invalidate the directive. The EPA claimed that appointment policy was reserved to agency discretion, and that the plaintiffs failed to allege a violation of any specific statutory provision.

The trial court agreed with the EPA’s position, finding that when making appointments to the committees, agency heads have complete discretion “unless otherwise provided by statute, Presidential directive, or other established authority.” One such restriction on their discretion, the trial court noted, is the applicable ethics rules, found in 18 U.S.C. §208, and the accompanying regulation that dictate that a grant recipient can participate on an EPA advisory committee without incurring liability. However, the court reasoned that while someone may serve on an advisory committee without incurring liability under the conflict of interest statute, that does not dictate that an agency must appoint him as a member.  In other words, the conflict of interest rules function as a floor, not a ceiling, for acceptable government service.

The plaintiff also claimed that the EPA failed to adequately explain its change in policy, and challenged it as arbitrary and capricious. However, the trial court determined that the arbitrary and capricious standard cannot be enough, by itself, to provide a meaningful standard for the court. Instead, the court explained that, “When an agency departs from its prior policy, it must display awareness that it is changing position, and it ‘must show that there are good reasons for the new policy.’ But it need not establish ‘that the reasons for the new policy are better than the reason for the old ones; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better...’” This “reasonable and reasonably explained’ standard is deferential, so long as the agency’s action – and the agency’s explanation for that action – falls within a zone of reasonableness.” In defending its policy change, the EPA explained that “while receipt of grant funds from the EPA may not constitute a financial conflict of interest, receipt of that funding could raise independence concerns depending on the nature of the research conducted and the issues addressed by the committee.” Thus, the change was necessary “to ensure integrity and confidence in its advisory committees.” The trial court found the EPA’s explanation to be within the zone of reasonableness. Based on these findings, the trial court held that the EPA action was rational, considered the relevant factors and within the authority delegated to the agency, and granted the EPA’s motion to dismiss the case. 

Conclusion

The newly proposed WOTUS rule is designed to clarify just exactly what constitutes waters over which the federal government has regulatory authority.  It is a tighter definition in many respects than the 2015 version was.  Public hearings will be held during the 60-day comment period.  For those in the Midwest and Great Plains, public hearing will be held at the EPA building in Kansas City, KS on February 27 and 28.  For those wishing to submit written comments by the April 15 deadline, the comments should be identified by Docket ID No. EPA-HQ-OW-2018-0149 and submitted to the Federal Rulemaking Portal at: https://www.regulations.gov 

In addition, removing potential bias from EPA advisory committees is another step in the right direction.  Both developments have big implications for agriculture.

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