Agriculture runs on water. But, recently, President Biden’s administration finalized a rule that re-defined “waters of the United States,” or WOTUS, removing a 2020 Trump-era rule that many felt protected farmers and ranchers from egregious oversight. The new rule — intended to protect small streams, wetlands, and other waterways — has left many agricultural organizations whiplashed and arguing that the limited exceptions for agriculture and unclear definitions hold heavy implications for agriculture.
WOTUS appears in the federal Clean Water Act of 1972 and empowers the U.S. Environmental Protection Agency and the Army Corps of Engineers to protect the waters. The problem, though, is that the definition covered by WOTUS is not altogether clear. It mentions “navigable” and “interstate” waters, and while the EPA and U.S. Army Corps say the rule was created using, “the best available science, and extensive implementation experience stewarding the nation’s waters,” the final rule comes prior to the Supreme Court weighing in on a Sackett v. EPA case surrounding WOTUS.
The rule will be final 60 days after publication in the Federal Register, which happened on Dec. 30, and a Jan. 19 webinar will be held on the rule.
Here’s what agricultural organizations and constituents are saying about WOTUS:
The National Association of State Departments of Agriculture issued the following statement regarding WOTUS:
“The EPA’s latest rule on defining “waters of the United States” is a statement of federal overreach that ignores states’ authority to regulate intrastate water quality and the Clean Water Act’s statutory mandate for cooperative federalism. In turn, although we recognize EPA’s attempt at clarifying through a roster of exemptions, its rule ignores the voices of nearly all in American agriculture who have long been seeking clarity on this issue, especially regarding the debate over what is and is not a navigable water,” NASDA CEO Ted McKinney said.
“Farmers are committed to being responsible stewards of the land and water that they use to grow food, and the effectiveness of WOTUS should be taken with the same seriousness,” McKinney said.
American Farm Bureau Federation President Zippy Duvall commented on the EPA’s issuance of yet another Waters of the United States rule, replacing the Navigable Waters Protection Rule:
“We appreciate the agencies’ attempt to provide needed clarifications of the prior converted cropland exclusion and exemptions for irrigation ditches and stock ponds, but the overall rule is still unworkable for America’s farm families. The back and forth over water regulations threatens the progress made to responsibly manage natural resources and will make it more difficult for farmers and ranchers to ensure food security for families at home and abroad.”
“AFBF is extremely disappointed in the EPA and Army Corps of Engineers’ new Waters of the United States Rule. Farmers and ranchers share the goal of protecting the nation’s waterways, but they deserve rules that don’t require a team of attorneys and consultants to identify ‘navigable waters’ on their land. EPA has doubled down on the old significant nexus test, creating more complicated regulations that will impose a quagmire of regulatory uncertainty on large areas of private farmland miles from the nearest navigable water.
The National Cattlemen’s Beef Association issued the following statement on the Biden administration’s finalized WOTUS rule:
“For too long, farmers and ranchers have dealt with the whiplash of shifting WOTUS definitions. Today, the Biden administration sought to finalize a WOTUS definition that will protect both our nation’s water supply and cattle producers across the nation.” said NCBA Chief Counsel Mary-Thomas Hart. “While the rule retains longstanding, bipartisan WOTUS exclusions for certain agricultural features, it creates new uncertainty for farmers, ranchers, and landowners across the nation.”
The Fertilizer Institute expressed disappointment with the final Waters of the United States rule, calling it misguided and premature:
“The number one thing industry needs from regulatory bodies is clarity and certainty. The final WOTUS rule provides neither.” said TFI President and CEO Corey Rosenbusch. “Many of our member companies must plan years in advance to obtain all necessary permits in accordance with the Clean Water Act. We need regulatory certainty and predictability and have a strong interest in ensuring that the definition of WOTUS is clearly defined and consistently implemented across the nation.”
The National Association of Wheat Growers expressed their concern about the rule coming before the Sackett decision but said they will be studying the new rule before its implementation:
“The National Association of Wheat Growers is deeply concerned that the EPA and U.S. Army Corps rushed to get this revised definition out prior to the end of the year instead of waiting for the decision in the Sackett case before the Supreme Court,” said NAWG CEO Chandler Goule. “While we continue reviewing the final rule, since the rule making process was announced last year, NAWG has stressed that farmers need clarity regarding jurisdiction, recognize important agricultural water features, and more long-term certainty from the courts and administrations.”
U.S. Rep. Kelly Armstrong (R-ND) released the following statement:
“The return of WOTUS would be a disaster for North Dakota’s farmers and ranchers,” said Congressman Kelly Armstrong. “I am disappointed that the Biden administration is determined to bring it back despite warnings from ag producers that it will harm their livelihoods. We have to keep fighting against harmful policies that don’t do anything to keep our air and water clean.”