Community Ag Alliance: Colorado, ag groups scrutinize EPA rule |

Community Ag Alliance: Colorado, ag groups scrutinize EPA rule

Last summer, Colorado, along with 18 other states, sued the Environmental Protection Agency and the U.S. Army Corps of Engineers across the proposed rule expanding the reach of “Waters of the U.S.,” or WOTUS, under the Clean Water Act.

The WOTUS rule was intended to clarify which bodies of water are regulated under the Clean Water Act in light of Supreme Court rulings in 2001 and 2006 that decided U.S. Navigable Waters were not intended to be all waters and that the federal agencies had adopted an overly broad interpretation of the scope of their authority.

Colorado, along with the other states, contended the new rule was unnecessary, infringed on state sovereignty and defined waters of the U.S. so expansively the federal government could apply jurisdiction and regulation to all forms of surface water, including ephemeral streams and creeks, isolated small ponds and seasonal irrigational ditches.

The EPA indicated the rule’s goal was to provide clarity for waters of the U.S., but opponents pointed to language such as the revised definition of a tributary, which included that “land features may be deemed to be tributaries, even if they are invisible to the landowner and no longer exist on the landscape.”

Critical to Colorado at a time when the state was developing a state water plan, the concern was the WOTUS rule could undermine Colorado’s water law and threaten both agricultural water rights and the water rights of countless municipal, industrial and commercial water users.

In addition to the 18 states, more than 90 state and national agricultural organizations opposed the WOTUS rule as an overreach of federal power and an impact to historical agricultural practices and property rights. The rule differs from the current Clean Water Act, in which certain agriculture exemptions exist for “dredge and fill materials” that allow farmers and ranchers to work the land without the requirement for federal permits.

The primary objections across the agricultural community were the WOTUS rule’s proposed expansion of federally regulated waters and the fact that farming practices, such as fertilizer applications, weed control and soil conditioning, would now be regulated for discharge. Colorado’s lawsuit stated, “the rule fails to account for duration of water flow, suggesting federal agencies can assert jurisdiction over dry ponds, ephemeral streams, intermittent channels and even man-made ditches.”

In August, one day before the WOTUS rule took effect, a federal judge ruled the WOTUS rule was to be halted within the states named in the lawsuits. The EPA contended the rule would be enforced in all other states, and, on Oct. 9, the U.S. Court of Appeals expanded the stay on the WOTUS rule to the entire nation.

Colorado’s representatives and agricultural interests will continue to monitor this contentious modification to the Clean Water Act. How long the lawsuits will take to flow through the courts is unclear, and there is speculation the U.S. Supreme Court may take up the WOTUS rule June 2016.

Ren Martyn is a ranch real estate broker with Steamboat Sotheby’s International Realty and Community Ag Alliance Board member

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