Jamie continues his discussion Levi Otis, Director of Government Relations at Ellingson Companies, and Kale Van Bruggen, Attorney at Rinkee Noonan law firm, this time turning their attention to Waters of the United States or WOTUS. Listen to learn more about the legislation and its impact on agriculture today.
Kale VanBruggen: Farm advocacy (we called it “agvocacy”) was an important part of my upbringing and shaped my choice to attend Drake University Law School, where I completed the Food and Agricultural Law Certificate program and graduated with highest honors. I bring my passion for farm “agvocacy” into my work representing farmers, landowners, and rural, local governments on litigation, regulatory and transactional matters primarily focused on water resources.
Levi Otis: Director of Government Affairs
Jamie 0:02
This is the water table.
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The chance to hear the agricultural side of these issues.
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A place for people to go find information and education.
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water management is just going to become even more critical into the future.
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Jamie 0:31
Welcome to the water table podcast. Thanks for joining us. Today we’re on part two of this discussion with Levi Otis and Kale Van Bruggan. Thank you guys for joining us again. And we had some great discussion the last time in regards to US Fish and Wildlife. Today we’re going to talk about Waters of the United States, better known as WOTUS. I just know a little bit about this. And what I’ve heard in the papers and in leading up to you know, where this was maybe seven, eight years ago, and where it was kind of going and some concern from from people in Agriculture and Water Management. And that’s changed dramatically under Trump. And I want Kale and Levi, you can add to this, but to kind of describe for our listeners, as we have a full range here people that maybe have not even heard the term to people that are pretty intimate in what it what it is. And so if you would just give us an overview of WOTUS, Kale, that’d be great.
Kale Van Bruggen 1:36
Yeah, thanks, Jamie. So when we talk about WOTUS that stands for Waters of the United States. So what we’re talking about is the federal Clean Water Act. This is the basic most basic federal law that authorizes the Corps of Engineers to issue permits for discharging pollutants into waters into waters, the United States. It actually in the law says, discharging pollutants into navigable waters. And unless you’re an attorney, that might not be very significant to you. But for attorneys, we know that that was required, because for Congress to have control over water located within any state, it’s got to be related to the Commerce powers of Congress. And so that water needs to be navigable in order for Congress to regulate it. Well, that might seem simple enough, you know, can we float a boat or canoe on the water. But as with most things in law, through a series of litigation, and really important court cases, arguing about the definition of that word, essentially, we’ve been informed by the courts that there are some waters that you maybe can’t drive a boat on, that are so intertwined, and so wrapped up in the water quality of the navigable waters, that Congress should have a right to regulate those too. So WOTUS is really about what is the bumpers or what is the extent of jurisdiction that the Army Corps entering permits, and the Environmental Protection Agency in issuing enforcement actions has over certain water features. And definitely, that’s been litigated. There’s been rules adopted by the most recent administrations that have been litigated and so we can talk about any of those aspects Jamie of of that.
Jamie 3:33
Bood, good. Levi, anything to add to that? You know, even what… there’s just so many different emotions out there with people’s feelings about WOTUS and so, I know you’re in the around the round the area in farm country a lot and you know, what do you want to add to that?
Levi Otis 3:57
Well, this is, this is way deeper into Kale’s expertise, but from from Ag country in the northern plains, very concerning here during the Obama administration when that happened, because, again, uncertainty. As we spoke about in our first segment about not really having a clear path or a clear description of what was going on, I think a lot of people were very concerned that if their outlet, whether it was surface drainage or subsurface drainage and their outlet was dumping into a ditch that connected to a navigable water, could they then be in violation? And Kale was in our attorney general in North Dakota that kind of led that that lawsuit against Waters of the US or I just feel like 13 of our states were granted a stay and I believe it was Attorney General Stengem that was that kind of led that charge for the defense and part of the reason we never really got, I don’t want to say concern, but too in depth with Waters of the US was pur state defended it or defeated it early on for those of us that joined the lawsuit with North Dakota.
Kale Van Bruggen 5:13
Yeah, that’s right. During the rule that came out of the Obama administration, there was litigation across the entire country over that rule. And what we ended up getting through the remainder of former President Obama’s term, were kind of this piecemeal then approach across the country to what rule was in place. So North Dakota was part of the larger group of states that successfully obtained an injunction of that rule and got that state. So that didn’t defeat the Clean Water Act in our state. What that meant was that the definition just reverted back to what it was prior to the rule, which was a series of three or four, you know, agency guidance memos that were just about as unclear as the rule itself was as to what was covered as Waters of the United States and what was not. And so in some states that that Obama rule started to move forward. In some states that did not. Before the litigation over that version of the rule can be fully completed, we had a change in administration, the Trump administration rescinded the rule from the Obama administration, and then developed an issued its own rule, which until just recently, I believe on Tuesday, the Trump administration version of the rule was in effect in 49 of the 50 states, Colorado had an injunction that was preventing that rule from moving forward. But that was lifted on Tuesday. And so now the rule out of the Trump administration is the rule of the land as we sit here today.
Jamie 6:53
And what what happens going forward now in regards to is that just another ruling that is that how easy it can be for Biden administration to change it, either back to what to change it, whether it’s back to what Obama’s, or something else, is it that easy? Or are we in a place where it can stay this way for a while?
Kale Van Bruggen 7:16
Yeah, that’s a good question, Jamie. So the interesting piece is that there can be litigation over the way that you resend and change course in a role. And then there can be litigation over the rule that you replace it with itself. So it’s not as easy as the new administration coming in and just saying, we just don’t like this rule, we’re going to rescind it and stop it, they need to follow the Administrative Procedures Act and do that rescission, or that stay in a way that follows current law. And how this has worked for the last several decades is whichever side is on the opposite side of that version of that action is always going to litigate it. So it starts to feel like, you know, this issue will always be under litigation and challenge and constantly evolving, either until the courts decide to set something at the supreme court level, that’s precedential. Or Congress steps in and acts and add some clarity to it. You know, the courts in the most recent cases, have basically said, Look, we’ve done the best we can but Congress really needs to clear this up, if they want to stop the litigation. And I think a bunch of us can assume, you know, the likelihood of Congress opening up an issue that’s controversial and successfully getting some clarity paths as to where the Clean Water Act jurisdiction starts and stops.
Levi Otis 8:41
Yeah, that’s where that term act of Congress comes from.
Kale Van Bruggen 8:45
So I think, Jamie, what is, you know, what is the regulated community do with this with all the uncertainty? That’s part of our job as attorneys is to look for ways to eliminate or minimize, you know, risk. And so Waters of the United States is, is one component of the Clean Water Act. It’s certainly important, because if something is definitively not Waters of the United States, you know, then you know, that’s not an analysis you need to go down. But the reality is, especially when it comes to wetland areas, sometimes you just don’t know, you just can’t be certain. And so we look for other ways that says, well, let’s assume that it is Waters of the United States that this is a wetland, that the Army Corps and EPA have jurisdiction over, are there ways that we can ensure that we don’t want to follow the Clean Water Act with what we’re doing in this area. And that’s where it’s, you know, Waters of the United States gets all the attention in the press, but it’s just as important in my mind to understand what activities are discharges of pollutants, and what activities are exempt. So one that commonly people know about are his normal farming practices. Just because a wetland is Waters of the United States doesn’t mean that you can’t farm through it when conditions allow. When you have John Kolb on your podcast, he touched on that being a very important part of the negotiation of the Clean Water Act is that those farming interests be exempt and protected. The one that Levi’s company follows and my clients follow really closely with water management tile systems, is the consideration of whether installation of drain tile through a wetland area that’s Waters of the United States requires a permit and mitigation or not. And that’s been somewhat controversial, especially in Minnesota and the Dakotas. So Minnesota, their army corps office gets its direction from the headquarters regional headquarters in St. Paul. And the Dakotas, they get their direction from the regional headquarters office in Omaha, Nebraska. And I’ve had cases, you know, less than 20 miles apart, just across the border, where the landowners are being told two different things from the same agency under the same law as to whether, you know, installation of that drain tile through a Waters United States wetland requires a permit or not, whether that’s a discharge of a pollutant. So to kind of simplify that, you know, number one, if we can get to some certainty over whether or not that activity is allowed, the question of whether or not that wetland is a Waters in the United States becomes a little less risky or a little less problematic for the regulated community.
Jamie 11:38
You know, there’s always there’s always challenges and everything that we’re discussing, there’s always going to be, you know, need for clarity on this, and I appreciate you given a real life example there and how, you know, just our industry runs into things. You know, that’s not just because Kale is an attorney and he sees this stuff that, you know, we’re 20 miles apart and getting two different answers. This is what happens, I’m sure in lots of industries, but we see it a lot here. And, again, that’s why we’re trying to educate and educate people to so they can ask the right questions, and hopefully not get themselves into these situations if they’re landowners and farmers. So as we, you know, I think we gave a good explanation there. And what are at least what I know from our listeners, what they want to know about WOTUS, what is it? You know, what was the change? Why was there a big…a lot of talk about it in the Trump years and you know, where’s it going now? And I think you did a good job of that so we can move forward. But, Levi, you work a lot in the state of North Dakota. We’ve got listeners from all over, but is there, Is there anything we have listeners in North Dakota to the ones that have radios, So do you want to share anything in regards to what’s happening on the legislature in North Dakota and what you’ve been up to in 2021?
Levi Otis 13:09
Yeah, we’ve had a couple bills in the legislature actually, there’s three I’m forgetting the third one, but we’ve had Senate Bill 2020, or excuse me 2208 that was going to bring all of the drainage related legislation into one bill which was assessment drains or legal drains and in the tile bill and bringing it all in and in which sounded great in theory, but then when you start doing that you can start tweaking bills what ended up happening is that was changed into a study and I believe they’re bringing people outside the legislature to contribute in that study was heard in the house again today. They didn’t take any action this morning, as far as I know. And then 1437 which is a drain North Dakota to drainage or tile law. piece of legislation that puts us more in line in North Dakota with with states like Minnesota and Iowa that have strong good water water policy when it comes to tile drainage. And there’s a couple of hiccups. I passed the House 94 to 0 bipartisan with complete support from Ag groups and everybody else and today was a bit puzzling in the Senate with the different things that were kind of thrown or requested at the bill. I think some of the age groups were a bit frustrated that they felt off guard I think the attitude was that it was gonna sail through and and so we might have some things to work on through this week and next week and I’m confident that there’s enough horsepower in the Senate to to advocate for a do pass and then it’ll be on the governor’s desk probably, you know, within the month and and once that’s signed, it’ll be law immediately. So it’s pretty exciting stuff, it’s good for farmers and will allow, allow us to do some of those projects that you were talking about earlier, you know, talking about water quality wetlands or denitrifying wetlands and some of the carbon deals, but until you can manage water, you can’t do much.
Jamie 15:21
Yeah, thanks for that. And, you know, by the time that this, this podcast airs some of that stuff that you just talked about will be probably on the governor’s desk and we’ll be moving forward and that’s a good thing. I just want to, you know, just share that our industry and farmers and land owners across the Midwest should have a sense of gratitude for what guys like you do in your companies. You educate the public, you help and serve our greater farm network and in what you do, and your real leaders, your companies and yourselves real leaders in the industry. So thank you, from me and from the water table for what you do every day. It’s appreciated. And you know, hopefully that this podcast in the series can be a conduit to bring in more people into the conversation and we bring more people into you know, giving you guys a call and asking questions, potentially hiring you if they have a problem, Kale. But that’s what we’re about here is bringing bringing people together on even contentious conversations and arguments that we can find solutions by visiting and talking it through. So again, this is a little bit of a shorter second episode here but good valuable information. Levi, I’m going to give you the opportunity as a water table takeaway here before we leave our listeners today.
Levi Otis 17:01
Well, I kind of stole kales last word last time, so I apologize. But I will kind of like the line if you don’t get help from us get help somewhere. And whether it’s Rinky Noonan, or it’s another law firm, or if you’re calling Ellingson, I prefer you call us I think we really try to be perfect when we’re not always perfect but I believe all of our employees go to work every day trying to be. And same with your company, Jamie. Prinsco is just a…I love the collaboration and the willingness to work with those of us in the water community and being able to make lives better for those that buy our products. And so if you don’t, if you don’t want to get help from us, but you need to do it, there’s resources out there and we work 24/7 I think the three of us. So it is a privilege to have the relationships in the working that we knew with all of our customers. So I’m just looking forward to, you know, ways we can improve in the next 15,20,30,40 years. By the time we have to retire.
Jamie 18:12
Yeah, so you heard it from Levi Otis is if you can’t get help from us get help somewhere. And you know, that’s what’s been in now in going into four or five months of doing this podcast is what’s been beneficial for me and really rewarding is the fact that I get to talk to people that I’ve built relationships with over a long period of time. And, you know, Kale and I met years and years ago in Washington, DC the first time and to be able to now collaborate with you on something like this and hopefully educate others is super rewarding. And that’s what our industry is about. That’s what the greater agricultural industry is about is building relationships, helping one another to individually and as a team succeed. And so thank you guys for joining me. We’re gonna have this series out here with John Kolb and then and then with you two that are all kind of in sequence of each other. And I hope it’s helpful and we’ll see along the way and we’ll have another podcast so appreciate your involvement.
Kale Van Bruggen 19:23
Thanks Jamie.
Levi Otis 19:24
Thank you.
Jamie 19:28
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