WASHINGTON — Editor’s note: Several agricultural organizations have commented on the U.S. Environmental Protection Agency’s and U.S. Department of the Army’s announcement of a final rule on Waters of the United States. Statements from the National Association of State Departments of Agriculture, American Farm Bureau Federation, The Fertilizer Institute, National Cattlemen’s Beef Association, and National Association of Wheat Growers can be found below.
The National Association of State Departments of Agriculture issued the following statement regarding the U.S. Environmental Protection Agency’s and U.S. Department of the Army’s announcement of a final rule on Waters of the United States:
“The EPA’s latest rule on defining “waters of the United States” is a statement of federal overreach that ignores states’ authority to regulate intrastate water quality and the Clean Water Act’s statutory mandate for cooperative federalism. In turn, although we recognize EPA’s attempt at clarifying through a roster of exemptions, its rule ignores the voices of nearly all in American agriculture who have long been seeking clarity on this issue, especially regarding the debate over what is and is not a navigable water,” NASDA CEO Ted McKinney said.
“Farmers are committed to being responsible stewards of the land and water that they use to grow food, and the effectiveness of WOTUS should be taken with the same seriousness,” McKinney said.
As NASDA previously stated in multiple sets of comments and input throughout this regulatory process, the Clean Water Act establishes limits on federal jurisdiction and the role of the federal government to regulate interstate commerce, thus recognizing the role of states in regulating non-navigable waters.
Further, the release of this ruling ahead of the U.S. Supreme Court ruling on Sackett v. EPA wastes tremendous federal, state and private sector resources as the decision of SCOTUS will invariably shift water regulations across the United States yet again significantly. This is in stark contrast to the comments previously made by Administrator Regan to the U.S. House Appropriations Subcommittee on Interior and the Environment that the EPA’s rule would “be in a position to respond and adjust to the Supreme Court ruling.”
American Farm Bureau Federation President Zippy Duvall commented today on EPA’s issuance of yet another Waters of the United States Rule, which will replace the Navigable Waters Protection Rule.
“AFBF is extremely disappointed in the EPA and Army Corps of Engineers’ new Waters of the United States Rule. Farmers and ranchers share the goal of protecting the nation’s waterways, but they deserve rules that don’t require a team of attorneys and consultants to identify ‘navigable waters’ on their land. EPA has doubled down on the old significant nexus test, creating more complicated regulations that will impose a quagmire of regulatory uncertainty on large areas of private farmland miles from the nearest navigable water.
“Even more puzzling is the administration’s insistence on moving forward with a new rule while the Supreme Court is about to issue a decision on the scope of the Clean Water Act. A ruling in the Sackett case could send WOTUS back to the drawing board, so it makes no sense for EPA to issue a rule that will only cause more disruption and uncertainty.
“We appreciate the agencies’ attempt to provide needed clarifications of the prior converted cropland exclusion and exemptions for irrigation ditches and stock ponds, but the overall rule is still unworkable for America’s farm families. The back and forth over water regulations threatens the progress made to responsibly manage natural resources and will make it more difficult for farmers and ranchers to ensure food security for families at home and abroad.”
The Fertilizer Institute (TFI) today expressed disappointment with the Environmental Protection Agency’s (EPA) and the Army Corps of Engineers’ (ACOE) final Waters of the United States (WOTUS) rule, calling it misguided and premature.
“The number one thing industry needs from regulatory bodies is clarity and certainty. The final WOTUS rule provides neither.” said TFI President and CEO Corey Rosenbusch. “Many of our member companies must plan years in advance to obtain all necessary permits in accordance with the Clean Water Act (CWA). We need regulatory certainty and predictability and have a strong interest in ensuring that the definition of WOTUS is clearly defined and consistently implemented across the nation.”
Complicating matters further is a pending U.S. Supreme Court ruling to determine whether Justice Kennedy’s “significant nexus” is the proper test for asserting jurisdiction over wetlands that are adjacent to tributaries of “waters of the U.S.”
“In February we joined a chorus of other organizations and many members of Congress in urging the agencies to delay the rulemaking until after the Supreme Court has issued its ruling,” Rosenbusch explained. “The ruling will likely negate or render irrelevant significant elements of the WOTUS rule and create even more confusion for businesses and landowners throughout the country.”
TFI’s comments from February can be read in full here.
Today, the National Cattlemen’s Beef Association (NCBA) issued the following statement on the Biden administration’s finalized Waters of the U.S. (WOTUS) rule.
“For too long, farmers and ranchers have dealt with the whiplash of shifting WOTUS definitions. Today, the Biden administration sought to finalize a WOTUS definition that will protect both our nation’s water supply and cattle producers across the nation.” said NCBA Chief Counsel Mary-Thomas Hart. “While the rule retains longstanding, bipartisan WOTUS exclusions for certain agricultural features, it creates new uncertainty for farmers, ranchers, and landowners across the nation.”
NCBA previously called for the Environmental Protection Agency (EPA) to retain agricultural exclusions for small, isolated, and temporary water features that commonly appear on farms and ranches. These exclusions have broad support and were included in WOTUS rules under both Republican and Democratic administrations. The rule fails to clearly exempt isolated and ephemeral features from federal jurisdiction and relies on “case-by-case” determinations to assess whether a feature is federally regulated. Today’s rule is a far cry from the regulatory certainty provided by the Navigable Waters Protection Rule, creating a significant and costly burden for agricultural producers.
“The timing of this rule could not be worse,” added Hart. “The Supreme Court is currently considering Sackett v. EPA, which will provide much-needed clarity related to the WOTUS definition. Today’s final rule seeks to directly preempt ongoing Supreme Court litigation, leaving farmers and ranchers with more questions than answers.”
Today, the United States Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers announced the final “Revised Definition of ‘Waters of the United States’”. The rule will take effect 60 days after it is published in the Federal Register.
“The National Association of Wheat Growers (NAWG) is deeply concerned that the EPA and U.S. Army Corps rushed to get this revised definition out prior to the end of the year instead of waiting for the decision in the Sackett case before the Supreme Court,” said NAWG CEO, Chandler Goule. “While we continue reviewing the final rule, since the rulemaking process was announced last year, NAWG has stressed that farmers need clarity regarding jurisdiction, recognize important agricultural water features, and more long-term certainty from the courts and administrations.”
In April 2022, NAWG filed an amicus brief with other agriculture groups in the Supreme Court case, which is examining the scope of federal jurisdiction as a Water of the United States under the Clean Water Act.
NAWG will be reviewing the regulation in more detail in the coming days. For more information, visit the EPA website.