With the recent release of the Environmental Protection Agency (EPA) Waters of the U.S. (WOTUS) rule, there has been a bevy of responses from the agricultural community. Generally, these responses all revolve around the issue that the rule leaves us with more questions than answers regarding its implementation. In response to these comments and concerns, AFBF has formally filed a lawsuit against the EPA & Army Corp. of engineers challenging this new rule.

The lawsuit, which was filed in the U.S. District Court in the Southern District of Texas on January 18th, addresses several issues that the American Farm Bureau had with the final rule, including the claim that the final rule provides clarity to the regulated community. The lawsuit argues that in reality, the rule makes clear the agencies’ insistence to exert Clean Water Act (CWA) jurisdiction over a “staggering range of dry land and water features.” Under this rule, farmers and ranchers will be at constant risk that any geographic feature on their property that is periodically wet would be considered WOTUS by the agencies due to the vague standards set by the final rule.

 One of the more technical points that the lawsuit addresses is the fact that the new rule effectively negates the term “navigable waters” which, since a Supreme Court case in 2001, has been used to determine if a water feature falls under the definition of WOTUS. Instead, the rule relies on a “significantly affect” standard that the lawsuit argues has no basis in the CWA.  This standard by definition encompasses any geographic feature that has “material influence on the chemical, physical, or biological integrity of traditional navigable waters.” This again provides the basis for the lawsuit’s claim that the rule is anything but clear in its application of the Clean Water Act.

American Farm Bureau’s President, Zippy Duvall used his weekly publication, aptly dubbed “The Zipline” with his comments on AFBF’s announcement. “Farmers and ranchers share the goal of protecting the resources we’re entrusted with. Clean water is important to all of us. Unfortunately, the new WOTUS rule once again gives the federal government sweeping authority over private lands. This isn’t what clean water regulations were intended to do. Farmers and ranchers should not have to hire a team of lawyers and consultants to determine how we can farm our land.”

As a reminder, the new rule comes into effect as we await a critical decision to come down from the Supreme Court in the case Sackett v. EPA, which seeks to clarify the former version of the rule. This pending case was the basis for many in the agricultural community voicing concerns over increased confusion, should a decision contrary to the final rule come down from the highest court in the land.

Zippy continues, “The new rule is vague and creates uncertainty for America’s farmers, even if they’re miles from the nearest navigable water. We believe a judge will recognize these regulations exceed the scope of the Clean Water Act, and direct EPA to develop rules that enable farmers to protect natural resources while ensuring they can continue stocking America’s pantries.”

Moving forward, we will continue providing updates as to the status of this lawsuit, and the increasingly intricate situation revolving around WOTUS continues.