Wednesday, August 23, 2017 It’s Time to Ditch the Rule

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.

Despite what its proponents claim, the 2015 rule fails to provide the clarity and certainty it promises. Instead, it creates confusion and risk by giving the agencies almost unlimited authority to regulate, at their discretion, any low spot where rainwater collects, including common farm ditches, ephemeral drainages, agricultural ponds and isolated wetlands found in and near farms and ranches across the nation. The 2015 rule defines terms like “tributary” and “adjacent” in ways that make it impossible for farmers to know whether the specific ditches, ephemeral drains or low areas on their land will be deemed “waters of the US.” But these definitions are broad enough to give regulators (and citizen plaintiffs) plenty of room to assert that such areas are subject to CWA regulation. The 2015 rule will give the agencies sweeping new authority to regulate land use, which they may exercise at will, or at the whim of a citizen plaintiff.

Farmers and ranchers support clean water and work hard to protect our natural resources. But the WOTUS rule had more to do with land than water. It was a land grab, pure and simple, that:

  • Created a huge regulatory burden for farmers, ranchers, and others who depend on their ability to work the land;
  • Increased costs for farmers, ranchers and others; and 
  • Produced confusion and uncertainty.

Farmers can deal with unpredictability and uncertainty when it comes to things like the weather, but the 2015 WOTUS rule is another burden that farmers don’t need.

On July 27, 2017, EPA proposed a new rule to repeal the onerous 2015 WOTUS rule.  This recently proposed rule will do what we have asked for since 2015. If you are a farmer or are involved in agriculture, we need you to submit your comment to the EPA telling them that you support the proposed rule to repeal the 2015 WOTUS rule.

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