With Congress back in their districts for August Recess, we thought it’d be a good time to talk about some federal issues that are a high priority for Farm Bureau. This week: WOTUS.
So what is WOTUS? Back in 2015 the Environmental Protection Agency (EPA) and US Army Corps of Engineers (Corps) adopted a rule defining the scope of “waters of the US” (WOTUS) protected under the Clean Water Act (CWA). That rule, the WOTUS rule, expands federal authority beyond the limits approved by Congress and affirmed by the U.S. Supreme Court.
But you may be thinking, ‘didn’t courts strike down the WOTUS rule?’ Yes and no. The rule has never been implemented because it was stayed in both federal district court and a federal court of appeals. But those court orders are only temporary. And while the EPA’s current plan is to eliminate the 2015 rule and work on crafting a better WOTUS definition, environmental activists desperately want to preserve the 2015 land grab.
The impact of the 2015 rule on farmers will be enormous. That’s because the rule effectively eliminates any constraints the term “navigable” previously imposed on the Corps’ and EPA’s CWA jurisdiction, and the list of waters deemed “non-navigable” is exceptionally narrow—providing that few, if any waters, would fall outside federal control. This kind of shift in policy means that EPA and the Corps can regulate any or all waters found within a state, no matter how small or seemingly unconnected to a federal interest.