Farm groups concerned about new WOTUS rule – Agweek

What is a navigable water? And how does that impact farmers and ranchers?

Farmers and ranchers have been among those concerned with how the rules governing the Clean Water Act may impact their operations. The attempts by federal administrations to define waters of the United States have led to legal wranglings over exactly what is meant by a navigable water as laid out in the Clean Water Act. Does it have to be a water that can be navigated or a water directly connected to it? Or do Prairie Potholes or seasonal wetlands that may have more tenuous connections to main waterways count, too?

What happens in the federal water policy can have real implications on the farm. Farmers and ranchers have cited things like drain tile decisions through areas that may contain ephemeral — or fleeting, seasonal — waters as reasons for clarity.

The US Environmental Protection Agency and US Army Corps of Engineers on Friday, Dec. 30, announced a new waters of the United States — or “WOTUS” — rule. Numerous farm groups and those in other, related industries, announced disappointment over the new rule, arguing that the agencies should have waited for an upcoming US Supreme Court opinion on the issue in Sackett v. EPA.

These are among the statements from ag groups that have been issued. The list will be updated as new statements are issued. Some ag groups appear to be closed or taking time off for the holidays.

American Farm Bureau Federation President Zippy Duvall:

“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.

“Even more puzzling is the administration’s insistence on moving forward with a new rule while the Supreme Court is about to issue a decision on the scope of the Clean Water Act. A ruling in the Sackett case could send WOTUS back to the drawing board, so it makes no sense for EPA to issue a rule that will only cause more disruption and uncertainty.

“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.”

National Association of Wheat Growers CEO Chandler Goule:

“The National Association of Wheat Growers is deeply concerned that the EPA and US 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. While we continue reviewing the final rule, since the rulemaking 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.”

National Cattlemen’s Beef Association:

“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.”

NCBA previously called for the Environmental Protection Agency to retain agricultural exclusions for small, isolated, and temporary water features that commonly appear on farms and ranches. These exclusions have broad support and were included in WOTUS rules under both Republican and Democratic administrations. The rule fails to clearly exempt isolated and ephemeral features from federal jurisdiction and relies on “case-by-case” determinations to assess whether a feature is federally regulated. Today’s rule is a far cry from the regulatory certainty provided by the Navigable Waters Protection Rule, creating a significant and costly burden for agricultural producers.

“The timing of this rule could not be worse,” added Hart. “The Supreme Court is currently considering Sackett v. EPA, which will provide much-needed clarity related to the WOTUS definition. Today’s final rule seeks to directly preempt ongoing Supreme Court litigation, leaving farmers and ranchers with more questions than answers.”

Waters Advocacy Coalition

The Waters Advocacy Coalition, which includes nearly 50 organizations representing agriculture, energy, infrastructure, construction and real estate, manufacturing, mining, specialty pesticides, state departments of agriculture, and many other job creators, is extremely disappointed in the Environmental Protection Agency’s and Army Corps of Engineers’ final Waters of the United States (WOTUS) rule.

The regulated community and many states have called for a rule that provides the clarity and certainty essential for predictable and efficient permitting. Unfortunately, the agencies failed to pay attention to the input they received during their public comment process, as well as their regional roundtables on the proposed rulemaking. Instead, the rule’s reliance on vague terms will make it very difficult for any business or individual trying to comply with the Clean Water Act (CWA)—let alone the many small businesses that we represent.

In addition, the new rule comes at a time when the Supreme Court is weighing the scope of the CWA in the case of Sackett v. EPA. A ruling in the Sackett case could negate (or render irrelevant) significant elements of this WOTUS rule, which will create even more confusion for landowners and businesses throughout the country.

WAC members work to protect and steward water resources, and a clear, efficient definition of WOTUS would enable us to continue to do so. Regrettably, EPA’s new water rule not only makes these efforts more difficult, it also puts sorely needed infrastructure projects at risk and threatens to make food, housing, and energy even more expensive for America’s families.

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