Latest WOTUS Rule Creates Uncertainty for Agriculture
With a new year and a Democratic administration comes yet another iteration of the rule regulating the Waters of The United States (WOTUS) by the Environmental Protection Agency (EPA) and the Army Corp. of engineers. The new updated final rule gets rid of the Trump-era Navigable Waters Protection Rule, which the Farm Bureau argues provided a clear, defensible rule that appropriately balanced the objective, goals, and policies of the Clean Water Act.
The ruling further creates uncertainty as to what waters and features fall under the jurisdiction of the rule, as the federal government will conduct "case-by-case" determinations to assess whether a feature is federally regulated moving forward. Proponents of the final rule insist that the process of submitting an inquiry on your land is an easy process, but the reality is that it remains a difficult, time-consuming task that can potentially leave agricultural land in limbo for unacceptable periods of time.
While there are exclusions for certain agricultural features in the new rule, it is still leaving farmers and ranchers in uncertain waters moving forward. EPA’s messaging has also shifted away from using language which made it seem as though the final rule would come at no new cost or impact to the taxpayer. The EPA has instead opted to insist that the new rule will have “minimum impacts,” raising concerns over what taxpayer resources will be necessary to enforce it.
Shedding more light on this issue, Courtney Briggs, Senior Director of Government Affairs for the American Farm Bureau Federation, made an appearance on AFBF’s podcast Newsline and explained the disappointment from AFBF regarding this step back in WOTUS legislation, which now resembles the 2015 rule more than anticipated. “This rule does not provide the needed clarity and certainty that the regulated community has long called for. This rule allows the federal government to expand their jurisdictional reach over private property. It is clear that the agencies have doubled down on their use of the troubling significant nexus test, which will require landowners to hire environmental consultants, attorneys and engineers to ensure that they are in compliance.”
AFBF has also stressed the importance of having a clear line of jurisdiction, as there are civil and criminal liabilities attached to Clean Water Act compliance.
As Briggs explained, “Since this rule relies on case-by-case determinations and ambiguously-defined terms, it is incredibly difficult for a farmer to understand if they have a jurisdictional feature on their property.”
Moreover, Farm Bureau has consistently argued that regardless of the content, it is premature for EPA to release a final rule before the Supreme Court rules in Sackett v. EPA. That case will opine on the application of the Significant Nexus test. Depending on the timing of the decision and the implementation of the rule, we could see a conflict between the two, leading to even more uncertainty than already exists in the ever-expanding reach of the WOTUS rule.
This new rule will go into effect 60 days after it is entered into the Federal Register, which we expect will happen in the coming weeks.