This article was originally published in Michigan Farm News in July 2015.
Most farms have ditches to help move excess storm water off their fields. And most farmers periodically clean out those ditches to keep them functioning. Is this a violation of the federal Clean Water Act (CWA)?
The long-awaited Waters of the United States (WOTUS) rule, the prepublication version of which EPA released on May 27, 2015, addresses whether ditches and other seemingly isolated water features fall within the jurisdiction of the CWA. Two of the EPA’s primary objectives in the WOTUS rule were to clarify admittedly confusing U.S. Supreme Court decisions on this issue, and to provide certainty over which waters are subject to the CWA. Unfortunately, EPA’s attempts to provide clarity and certainty resulted in an even greater expansion of federal jurisdiction over ditches and other isolated waters.
To determine whether a ditch or other seemingly isolated water is regulated under the CWA, one must start downstream. The WOTUS rule lists three categories of waters that have commonly been referred to as traditionally navigable waters (TNW). These include waters used in interstate commerce, interstate waters and territorial seas. For over 100 years, Congress has asserted federal jurisdiction over such waters and the Courts have upheld it. There is generally little controversy over the identification or inclusion of such waters.
But, does the ditch on your field or other seemingly isolated water feature (such as a pond or wetland) impact those waters sufficiently for the federal government to regulate it?
That is what the WOTUS rule is designed to answer. The WOTUS rule specifically excludes ditches that do not flow either directly or indirectly into a TNW, but many farm ditches carry excess storm water to other water features, and they often connect with other water features. If any of these water features are considered to be “tributaries” under the WOTUS rule, then this ditch exemption is not applicable.
What is a tributary? The WOTUS rule defines tributary as a water characterized by the presence of the physical indicators of a bed, banks and an ordinary high water mark, and that contributes flow either directly or indirectly to a TNW. A tributary, natural or man-made, does not lose its status if there is one or more breaks between it and the TNW, and can contribute flow through non-jurisdictional water features.
The WOTUS rule uses the ordinary high water concept as a key indicator of a sufficient volume and frequency of water. Michigan farmers are well-aware of state regulators applying Michigan’s definition of a regulated “stream” (a water having definite banks, a bed, and visible evidence of a continued flow or continued occurrence of water) to ditches. In many ways the definition of tributary is even broader; its physical features do not have to be definite or visible.
In the preamble to the prepublication rule, EPA indicates that the physical features can even be historic! How is a farmer supposed to determine if, during some post-glacial period, surface water existed between his/her farm and a TNW?
The WOTUS also excludes two other types of ditches: those with ephemeral and those with intermittent flow. Most farm ditches have both types, and both exemptions include an exception that the ditch cannot be a relocated tributary or excavated in a tributary. This leaves the farmer with the burden of determining the historic origin of a ditch that has probably been in existence for generations; not an easy task.
To add to the confusion, the definition of tributary also includes ditches that do not meet the three ditch exemptions listed above. Then we could look at whether nearby wetlands or other water features are regulated by meeting the “significant nexus” test through the nine newly-added functions in its definition.
Several public comments on the draft WOTUS rule warned that the rule was so broad it covered even mud puddles. To show that it has a sense of humor, EPA added an exclusion to the prepublication version of the rule for “puddles.”
While it is comforting to know that EPA recognizes there are limits to its jurisdiction, regrettably those limits do not appear to include many farm ditches.