Clean water is easy to take for granted. Turn on the faucet and it’s generally drinkable. In the hot summer months most swimming holes are disease free. Unfortunately, not every citizen is altruistic and the first Federal Water Pollution Control Act was enacted in 1948 to govern water pollution.

This law is now known as the Clean Water Act and administered by the Environmental Protection Agency. In June 2015, the EPA published the Waters of the United States rule to further define the scope of waters protected under the Clean Water Act. Current legal challenges have staid WOTUS nation-wide.

It is of concern to agriculture producers that WOTUS extends EPA jurisdiction from navigable waters to their tributaries and waters with significant nexus. Under WOTUS, a tributary can be defined as having physical indicators of a bed and banks, and an ordinary high water mark, but does not need to contain flowing water year around. Modifications to these waters and the surrounding area are subject to Section 404 regulations and permitting by the EPA and U.S. Corps of Engineers.

“There's a lot of things the ag community has to do in a timely fashion,” says Ken Hamilton, Executive Vice President of the Wyoming Farm Bureau Federation. “If you're required to get a 404 permit, or have them rule on whether it's a jurisdictional water or not, it could take them months, even years. And if you're wanting to fix your irrigation ditch because the spring runoff washed out a head gate, having to obtain the 404 permit will grind your ag operation to a halt. The next thing you know, you got a whole bunch of dry pastures.”

What is Section 404?

According to the EPA, “Section 404 of the Clean Water Act establishes a program to regulate the discharge of dredged or fill material into waters of the United States, including wetlands.” The agency lists exempt activities as including, but not limited to, established farming and ranching activities, construction and maintenance of farm or stock ponds, and the construction and maintenance of irrigation ditches. Recent EPA actions against normal agriculture activities in Wyoming have shown these exemptions aren’t always followed by the agency.

“We may be here in Wyoming,” Hamilton cautions, “and think that Waters of the United States won’t affect us because, my gosh, we get 15 inches of precipitation a year. But we've had some pretty good examples of what happens when the EPA and the Corps look around and they don't like what somebody has done. Or maybe they do like it; it's just the producer never got permission from the EPA first.”

Related: Supreme Court rules for propery rights in water disputes

Two Wyoming cases filed prior to WOTUS are instructive on how the new, broader definition may impact agriculture. In 2005, David Hamilton of Worland, Wyo. removed junked cars, old appliances and other debris from an irrigation ditch on his farm. To prevent erosion, Hamilton completed a dredge and fill project on the ditch in lieu of the metal trash.

Four years later the EPA began administrative action against Hamilton, and in 2010 he was sued for violating the Clean Water Act by not obtaining a 404 permit prior to cleaning the ditch. The United States v. Hamilton case jury ruled in favor of Hamilton. Their decision stated his dredge and fill project was exempt from 404 permitting requirements, as it constituted normal agriculture activities on a man-made irrigation ditch commonly known as “Slick Creek”.

Andy Johnson of Fort Bridger, Wyo. built a stock pond on Six Mile Creek in 2012 under a Wyoming State Engineer’s Office permit. According to the EPA, that two-foot wide, six-inch deep portion of the creek is a “water of the United States” as it is a tributary of Blacks Fork River, which is a tributary of the Green River. When Johnson received an EPA Compliance Order, he sued the agency. Settlement for Johnson v. EPA was reached in May 2016 with dismissal of fines, the stock pond remaining intact, willows being planted around the pond for habitat enhancement, and livestock fenced off the pond until September 2017.

“If you don't like what they did to Andy Johnson and David Hamilton under the old rules, you'll really not like what they're going to do under WOTUS,” Hamilton cautions. “Because really all WOTUS has done is expanded EPA jurisdiction significantly greater than what they already had.”

How much would be controlled?

The numbers have yet to be crunched for Wyoming, though an engineering firm, Geosyntec, found WOTUS brings 99% of the acres in the state of Montana under EPA jurisdiction. Irrigation structures are exempt from the rule unless they drain into jurisdictional water. In Wyoming, the majority of irrigational waters have return flow to a water source eventually finding its way downstream to navigable water or a tributary.

“There is so much uncertainty of which waters are jurisdictionally under WOTUS, [the Farm Bureau] is speculating that landowners should call the Corps of Engineers or EPA, and request a jurisdictional wetland or water determination on their place,” Hamilton says. “That way you wouldn't be sitting there wondering if the EPA has authority over your water, and if you’re doing something that may involve litigation later for not getting a 404 permit. The downside would be those guys going through your operation, and while they may not find a jurisdictional water at the place where you were thinking you wanted to do some things, they might find it somewhere else.”

The U.S. Court of Appeals for the Sixth Circuit has ruled it has jurisdiction over all challenges to WOTUS and staid the rule nation-wide until it reviews petitions. Under the Sixth Circuit there are currently 22 petitions pending from approximately 100 parties throughout the U.S., including agriculture, state governments, industry and environmental groups.

Additionally, there are about 15 cases filed in district courts nation-wide, like North Dakota. They are in various stage of dismissal or on hold, though the North Dakota case is active and has 13 western states collaboratively challenging the EPA. For the district cases not currently moving, the parties agreed to desist until the Sixth Circuit made a decision. Attorneys familiar with the cases say by the end of 2016 there should be movement on whether WOTUS is within the EPA’s statutory authority.

Read the entire definition of the Clean Water Rule: Definition of “Waters of the United States”