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Redefining WOTUS: What Farmers Should Know

On June 9th, The Environmental Protection Agency (EPA) determined that the Navigable Waters Protection Rule was significantly reducing clean water safeguards. 

As a result, the Department of Justice (DOJ) filed a motion that requested a remand of the rule, in turn, creating a bit of confusion about what exactly this means for farmers, ranchers, and landowners across the nation.  

The action initially led to more questions than answers. Will it be a completely new water rule, or will it simply revise the one currently in place? Should farmers continue to follow the guidelines set by the Navigable Waters Protection Rule or is that no longer in effect?  

The EPA outlined several priorities when it comes to reassessing the definition of WOTUS and reforming the Navigable Waters Protection Rule under an updated version of the Clean Water Act. Major initiatives include:  

  • Protecting water resources and communities under the Clean Water Act.
  • Reviewing the latest science on the impacts of climate change on U.S. waters.
  • Creating practical implementation strategies for state and Tribal partners.
  • Utilizing input received from landowners and the agricultural community.

But one question still remains—how will new water rule regulations affect farmers and landowners?  

As of this writing, that remains to be seen. However, industry leaders and lawmakers have many opinions and insights into the matter. Here’s what we know so far.

Industry Leaders and Lawmakers Urge Agriculture to be a part of WOTUS Rule Reform 

Fortunately, an overwhelming majority of industry leaders and lawmakers are vocalizing the importance of getting input from farmers and ranchers in order to ensure that future reform does not make their job of providing for our nation more difficult.  In fact, on June 25, 2021, 126 Congress members signed a letter sent to EPA Administrator Michael Regan that echoed these concerns. 

Regulation of the Nation’s waters must be done in a manner that responsibly protects the environment without unnecessary and costly expansion of the Federal government in order to prevent unreasonable and burdensome regulations and to protect small businesses, farmers, and families. 

– Excerpt from the congressional letter sent to EPA Administrator Michael Regan

Read the full letter here. 

According to U.S. Agriculture Secretary Tom Vilsack, that is precisely what EPA Administrator Michael Regan intends to do.  

“I know what he wants to be able to do…he wants to listen and learn, and he wants to make sure as they recraft this rule, they do in a way that responds to the concerns and the realities on the ground.” 

– Tom Vilsack, U.S. Agriculture Secretary

On June 30, 2021, the agency announced it would be collecting feedback and recommendations from stakeholders through public meetings. Ag organizations like the National Farmers Union have already provided remarks, pointing out that few understand the importance of clean water than the American Farmer and highlighting the need for a broader definition of jurisdictional waters under the Clean Water Act.

But on August 30, 2021, a federal judge for the District of Arizona ruled against the Navigable Waters Protection Rule, stating there were “fundamental, substantive flaws” in the currently enacted legislation that threatened the “possibility of serious environmental harm” if it remained in place.

According to the New York Times, with both the Obama-era and Trump-era policies repealed, a 1986 regulatory definition of WOTUS would take their place. Historically, farmers and environmentalists alike found this past WOTUS definition to be highly contradictory and poorly written. In fact, it resulted in thousands of legal disputes over water pollution that dragged on for years.

On November 18, 2021, these suspicions were confirmed when the EPA and the U.S. Department of the Army announced a proposed rule to re-establish the pre-2015 WOTUS definition. This ruling would implement the pre-2015 WOTUS definition in court decisions while the agencies “continue to consult with stakeholders to refine the definition of WOTUS in both implementation and future regulatory actions.”

According to current EPA administrator Michael Regan, the new water rule is currently under development. He anticipates a new proposal redefining WOTUS to be developed at one point in 2022. The agencies already have several virtual hearings scheduled in January 2022 to collect feedback from pre-registered attendees.

Register for Public Hearing on the Proposed WOTUS Rule Here.

Ag groups like the American Farm Bureau Federation and the National Corn Growers Association continue to voice their concerns with these developments, stressing the importance for farmers to “have a rule that is fair and doesn’t require a team of attorneys to interpret.”

Overreaching regulations create major permit backlogs for the federal government and result in long delays for farmers and ranchers who are working to keep America fed. 

Zippy Duvall, President of American Farm Bureau Federation

“We are extremely disappointed that this administration is taking us backward by removing a rule that has provided certainty for farmers who are working to feed and power America. NCGA will continue to work with the agencies and advocate for a WOTUS definition that provides farmers clarity about their obligations under the Clean Water Act.”

Chris Edington, President of National Corn Growers Association

In December 2021, the EPA released recommendations from the Farm, Ranch, and Rural Communities Advisory Committee (FRRCC) based on discussions from public forums from 2020 to 2021. FRRC recommendations include:

  • Placing limits on the scope of federal jurisdiction under the Clean Water Act by using the term “navigable”;
  • Clarifying the definition of WOTUS in terms that are easy to interpret;
  • Defining jurisdictional features that provide flexibility for farmers and ranchers to implement environmental innovation projects; and
  • Retaining clear exclusions that are critical to farmers, ranchers, and rural communities, including groundwater, canals, priorly converted cropland, and more.

Many industry leaders have expressed their support for FRRC recommendations and have urged the EPA to listen to the advice of its own committee.

“With the EPA’s convoluted approach to soliciting public comments and stakeholder perspectives on WOTUS, NCBA encourages the EPA to listen to its own advisory committee’s recommendation, and the recommendation is clear: farmers and ranchers need clear rules and regulatory certainty to be successful.”

Scott Yager, Chief Environmental Counsel for the National Cattlemen’s Beef Association

Ensuring the Voice of Agriculture is Heard

While the future is unclear, one certainty is resolute. The voices of agriculture must be heard and heeded during legislative reform that could impact their ability to keep our domestic food supply strong. AgAmerica will continue to monitor the progression of this ongoing reform closely and provide updates for farmers, ranchers, and rural landowners through the AgAmerica trade and legislation page. 

You can also sign up for AgAmerica’s newsletter to stay informed on the latest legislative updates happening in the agriculture industry. 

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AgAmerica Lending® LLC is a licensed mortgage lender. NMLS ID# 372267

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