Welcome to the wonderful world of WOTUS. That acronym stands for Waters of the United States. As is often necessary, political outrage spawns acronyms because the term in question is likely to be around for a long time and is thus easier to reference.
At the 64th edition of the Pennsylvania Farm Bureau’s Annual Meeting at the Hershey Lodge and Convention Center, President Carl Shaffer took to the podium for a news conference in which he raised only three points. “First,” he said, “the Chesapeake lawsuit, which the Pennsylvania Farm Bureau and the American Farm Bureau are engaged in, is very timely because today we are in front of the third Circuit Court in Philadelphia to offer oral arguments.” Several years ago the Environmental Protection Agency formulated guidelines for clean-up of the Bay, and also to implement them. “At first, the formula they used to develop a model was so flawed,” Shaffer said, “that we appealed to them to re-do the model. And they said ‘we’ve spent so much money on it that we’re going to have to use it.’ EPA does have the right to say ‘here’s what needs to be done.’ They do not have the right to say how the state is going to comply with that. The Clean Water Act forbids that.” Shaffer went on to question EPA’s own numbers. “To meet these guidelines, that is to say the numbers they have put out, the metrics, we would have to idle 600,000 acres of farmland. It would have to be returned to grasslands or forests. That is totally impractical. It would kill the industry; we just can’t do that.”
Shaffer’s second concern was what he also lumped as an end run around the Clean Water Act. Here’s where WOTUS comes in. Along with the Army Corps of Engineers, the EPA has come up with more regulations, to wit, stating that any water that reaches a tributary, any navigable water source, is under its control. This regulation has been stretched to include any water that might potentially become a part of that waterway. “In the spring, if we get a three inch rain,” Shaffer said, illustrating the issue, “sometimes the ground can’t absorb it quickly enough. So, surface water runs off. Wherever that water runs off, say, to a field and becomes a little stream, it is probably a one-time thing. Two days later it’s gone. EPA is saying that wherever that water has run, it is then considered Waters of the United States. Even if it’s dry land for another couple years, EPA still maintains that is Waters of the United States. What does that mean? If you have flow down through the middle of a field on a single occasion, to be able to spray that spot in the middle of the field, you’ll be required to get an NPDES permit [National Pollutant Discharge Elimination System]. They are very expensive to get and expensive to maintain. And they must be renewed every five years.” If you fail to get that permit, EPA can fine you $37,000 per day. “This is very detrimental to agriculture, very detrimental,” Shaffer said. Road ditches are also Waters of the United States. If you mow grass at that road ditch and don’t pick up the grass clippings, those clippings will have become a de facto point source discharge. In turn, that is likely to drive up costs for local municipalities and townships. Shaffer opines that the only change something like that will bring is civil suits. Otherwise, you’re still doing the same things you always did in the same fashion.
Shaffer’s final point centered on the results of the recent election. “I heartily hope that Governor-elect Tom Wolf thinks that agriculture is the number one industry in the state. Those are the three things that have concerned me. With the Chesapeake Bay lawsuit, I can’t give you a time when a decision will be handed down. I would guess the early part of next year.” To a question about state water rights possibly being thwarted, Shaffer elaborated, saying that “smaller farmers don’t have the extra resources that would allow them to buy a permit; some of them cost $30,000-to-$50,000 to obtain. That applies also to our Plain Sect folks. I could look at the EPA side if I thought it would bring some kind of environmental benefit, but it won’t.” Other types of legislation working their way through Congress find an opportunity for hearings. There are opportunities for fact-finding through these hearings; opportunities to hear scientific testimony in these hearings; and opportunities to do economic impact studies on these laws. There is none of that here! A land grab by the U.S. government is all it is.”
Insofar as governing and keeping track of ever molecule of water, where is the manpower coming from to do that? Shaffer says he thinks he knows. “They are going to dictate to the state. The DEP and Soil Conservation Districts shall go out and do the inspection for them. Right now, Congress, through appropriations, is ready to take any funding money away from them to do that. EPA doesn’t care, because they will simply tell the states ‘you are required to monitor this and do this, and report back to us.’”
Shaffer added that EPA doesn’t have the manpower or the money to carry out such an undertaking on its own. So if the burden falls on the shoulders of the state, where will it get the money? Higher taxes, he thinks. “The last Congress passed a law that went over to the Senate, and it sat there. I would say that even if the Senate passes it, President Obama has already been rattling his veto sword.