Moves might relieve burden under WOTUS and Clean Water Act

A decision by the U.S. Supreme Court and a proposed piece of the new Farm Bill may help remove regulatory burdens against farmers.

The U.S. Supreme Court has ruled that challenges to the 2015 Waters of the United States (WOTUS) definition belong in federal district courts, not federal appeals courts. In June 2015, North Dakota filed suit in U.S. District Court along with a dozen other states to block the rule from taking effect and was granted an injunction in late August of that year.

North Dakota Agriculture Commissioner Doug Goehring said he applauds the court’s ruling.

“The 2015 definition was an overreach of authority and significantly expanded federal control of land and water resources,” he said.

Goehring said that as part of the prairie pothole region, North Dakota would have been affected tremendously by the 2015 definition. North Dakota Attorney General Wayne Stenehjem announced plans to ask the federal district court to resume North Dakota’s case as soon as possible in order to obtain a final ruling.

In addition to the ruling from the Supreme Court, over 170 agricultural and public health organizations, including the National Potato Council, sent a letter backing legislation to limit the ability of activists to sue farmers under the Clean Water Act. The letter to House leaders encourages the inclusion of HR 953 in the upcoming 2018 Farm Bill.

HR 953 (the “Reducing Regulatory Burdens Act”) would clarify that farmers and other pesticide applicators who are fully complying with the Federal Fungicide, Rodenticide and Insecticide Act (FIFRA) cannot be required to also secure and be subject to the legal jeopardy of Clean Water Act permits. Due to various court rulings in the last decade, pesticide applications that are lawfully applied under FIFRA must also obtain Clean Water Act “National Pollutant Discharge Elimination System” (NPDES) permits, the NPC said.

EPA officials have testified that these NPDES permits (originally created for large industrial polluters) do not provide any additional environmental benefit over the protections in FIFRA, the NPC contends. However, they do provide activists with “citizen lawsuit” power that is absent under FIFRA and results in farmers being subject to possible penalties of $37,500 per day due to minor paperwork errors, the group said.

“The Farm Bill is an entirely appropriate place for this legislation,” said John Keeling, NPC CEO.

“We believe that the importance of passing this clarification has only increased as activists have become more aggressive in pursuing actions against otherwise lawful FIFRA applications.”