Maps show massive increase in EPA authority, regulatory uncertainty

A series of maps released Aug. 12 by the American Farm Bureau Federation indicate the U.S. Environmental Protection Agency will radically expand its jurisdiction over land use if its controversial “Waters of the United States” rule takes effect as expected Aug. 28.

The maps, prepared by Geosyntec Consulting, show a dramatic expansion of the EPA’s regulatory reach, stretching across wide swaths of land in Pennsylvania, Virginia and Montana. The AFBF asserts that landowners have no reliable way to know which of the water and land within that area will be regulated, yet they still must conform their activities to the new law.

“Farmers face enforcement action and severe penalties under EPA’s new rule for using the same safe, scientifically sound and federally approved crop protection tools they’ve used for years,” said AFBF President Bob Stallman. “This rule creates a new set of tools for harassing farmers in court, and does it all with language that is disturbingly vague and subject to abuse by future regulators.”

The map prepared for Virginia is available at fb.org/tmp/uploads/VirginiaWOTUSMaps.pptx. The map’s base layer shows areas regulated as tributaries and adjacent wetlands without a case-specific “significant nexus” analysis under previous rules. Through a progression, the map adds “ephemeral streams”—low spots in the land that drain and channel water away from farmland after a rain but are otherwise dry. Under the new rule, all such ephemeral tributaries are regulated.

With that added jurisdiction in place, the Clean Water Act will prohibit many common agricultural practices in or around ephemeral features. Any unpermitted discharge—whether pesticides, fertilizer or even disturbed soil—will leave farmers vulnerable to enforcement by the EPA, the Army Corps of Engineers or private citizens, with severe potential penalties.

The map’s next layer shows how the rule expands the definition of regulated “adjacent waters” to cover all waters, including wetlands, that lie even partially within 100 feet on either side of the newly regulated ephemeral drains.

Next, the map shows where even more “adjacent waters” may lie. Where any part of a water or wetland is within the 100-year floodplain of a tributary, and not more than 1,500 feet (a quarter-mile) from the tributary, that entire water feature is regulated. Many areas, AFBF has noted, lack flood zone maps, and many existing flood zone maps are out of date. Most ditches and ephemeral streams do not have mapped flood zones.

The final map layer shows waters that are not tributaries or adjacent but still may be jurisdictional based on a significant nexus to downstream waters. The rule allows significant nexus regulation of waters, including wetlands, which lie even partially within 4,000 feet (about three-quarters of a mile) of any tributary. Mapping 4,000 feet from even just known ephemeral streams—ignoring ditches and not-yet-identified ephemeral tributaries—shows that the 4,000-foot zone covers the entire landscape in many parts of the country.