EPA sending WOTUS to woodshed, new rule to be put in place

Finding agreement on many issues by farmers and farm groups is difficult. But over the past five years they have been unified in their displeasure about the Waters of the United States rule because of what they believed was federal government overreach.

On Jan. 23, they achieved a major victory when the Environmental Protection Agency announced it was defining WOTUS with the Navigable Waters Protection Rule.

U.S. Secretary of Agriculture Sonny Perdue praised the EPA and President Donald Trump in his announcement.

“President Trump is restoring the rule of law and empowering Americans by removing undue burdens and strangling regulations from the backs of our productive farmers, ranchers, and rural land-owners. The days are gone when the federal government can claim a small farm pond on private land as navigable waters,” Secretary Perdue said. “I thank President Trump and Administrator (Andrew) Wheeler for having the backs of our farmers, ranchers, and producers and for continuing to roll back federal overreach. With reforms and deregulation, Americans once again have the freedom to innovate, create, and grow.” 

House Agriculture Committee Ranking Member K. Michael Conaway also praised the announcement: 

“This rule provides clarity and consistency for landowners affected by the scope of WOTUS jurisdiction. Our nation’s navigable waters will remain well protected, while farmers and ranchers will no longer be subjected to ambiguous guidelines and regulatory uncertainty. I applaud the Trump administration’s dedication to getting this rule right, and look forward to finally ending decades of federal overreach on WOTUS,” he said.

U.S. Sen. Jerry Moran, R-KS, said the new rule will clarify the federal government’s authority in defining clean water.

“The new WOTUS definition helps clarify the jurisdiction the federal government and states have over waterways and provides a welcome change from the overreaching Obama-era WOTUS rule,” Moran said. “This rule reduces unnecessary regulations and allows Kansas farmers, ranchers and other landowners to better utilize the water resources available to them. It is important that we work to protect our wetlands and waterways for future generations, while also providing clarity on the EPA’s jurisdiction over our land and water.”

For the first time, the agencies are streamlining the definition so that it includes four simple categories of jurisdictional waters, provides clear exclusions for many water features that traditionally have not been regulated, and defines terms in the regulatory text that have never been defined before. Congress, in the Clean Water Act, explicitly directed the Agencies to protect “navigable waters.” The Navigable Waters Protection Rule regulates these waters and the core tributary systems that provide perennial or intermittent flow into them. The final rule fulfills Executive Order 13788 and reflects legal precedent set by key Supreme Court cases as well as robust public outreach and engagement, including pre-proposal input and comments received on the proposed rule.

The Navigable Waters Protection Rule protects the environment while respecting states, localities, tribes, and private property owners. It clearly delineates where federal regulations apply and gives state and local authorities more flexibility to determine how best to manage waters within their borders. Assertions have been made that the new rule will reduce jurisdiction over thousands of stream miles and millions of acres of wetlands. These assertions are incorrect because they are based on data that is too inaccurate and speculative to be meaningful for regulatory purposes. The final rule along with state, local, and tribal regulations and programs provide a network of protective coverage for the nation’s water resources.

Commodity groups have lined up in support of the Environmental Protection Agency’s decision to replace WOTUS with the Navigable Waters Protection Rule.

The announcement was welcome news to America’s wheat producers who have dealt with years of regulatory uncertainty, said National Association of Wheat Growers President Ben Scholz, a farmer from Lavon, Texas. “Farmers are dependent on protecting our natural resources for safe and reliable water to grow crops and for the communities that farmers are a part of. To do so, we need regulatory certainty and clarity as well as a commonsense framework for how the rules will work.”

The new regulation was the result of a promise made and kept by the Trump administration, according to American Soybean Association President Bill Gordon, a soy grower from Worthington, Minnesota, who noted the 2015 rule was cumbersome and confusing.

“We have long rallied for a replacement rule that protects our waterways while still offering a workable solution for farmers and that does not impose undue burden on agriculture. We express our thanks to the administration.”

The National Cotton Council was also pleased as chairman Mike Tate said, “This final rule removes many elements from federal control that were initiated in the previous administration. That includes features that contain water only in response to rainfall, groundwater, many farm and roadside ditches, prior converted cropland and stock watering ponds.”

The Alabama cotton producer noted that the NCC has worked tirelessly for this rule—an action which will restore power to states for controlling their own waters and their local land use and zoning issues.

“The U.S. cotton industry has long sought consistency and simplicity in water regulations,” Tate reiterated, “because all of agriculture deserves a commonsense and understandable rule that not only ensures environmental and human health but protects farmland and farmers’ rights to conduct operations in a responsible and economically sustainable manner with flexibility that wasn’t present under the 2015 rule.”

The EPA announced its decision on Jan. 23. Organizations, including the National Producers Council, believe the new rule will provide farmers with greater certainty while protecting water quality and environment.

"We’re pleased EPA has finalized a common-sense rule, the Navigable Waters Protection Rule, that works with—not against—farmers to protect our nation’s waterways," said NPPC President David Herring, a pork producer from Lillington, North Carolina. "The previous WOTUS rule was a dramatic government overreach and an unprecedented expansion of federal authority over private lands. Today’s action balances the role of federal, state and local authorities, protects property rights and provides clarity for farmers like me, while providing regulatory certainty to our farmers and businesses."

NPPC opposed the 2015 WOTUS rule because it was overly broad and had significant technical flaws, including the process that EPA used to develop the rule, which violated basic due process and long-standing procedural protections. On Aug. 21, 2019, the United States District Court for the Southern District of Georgia remanded the rule to EPA to redraft, stating that the Obama-era WOTUS rule itself violated the Clean Water Act and that the Obama administration’s procedures for enacting the WOTUS rule were clearly in violation of the Administrative Procedures Act.

National Cattlemen’s Beef Association President Jennifer Houston released the following statement in response to the finalization of a new water rule:

“This is the last regulatory step in a long-fought battle to repeal the 2015 Waters of the U.S. (WOTUS) rule and replace it with common-sense regulation. The 2015 WOTUS rule was an illegal effort to assert control over private property – and we fought to have it repealed – but it also needs to be replaced, and today’s action is the last step in that process.

“President (Donald) Trump, EPA Administrator (Andrew Wheeler) and Assistant Secretary of the Army R.D. James deserve a lot of credit for listening to cattle producers and for working with us to get us to this point. We look forward to working with EPA and the Army Corps of Engineers to successfully implement this new rule in the years to come.

“NCBA relentlessly fought WOTUS on Capitol Hill, at the Agencies, and in the Courts. Today, we can rest a little easier knowing that some power has been put back in the hands of landowners.”

Robert McKnight, Jr., president of the Texas and Southwestern Cattle Raisers Association, issued the following statement upon its announcement:

“Five years ago, cattle producers and property owners across the country were saddled with an overly broad and ambiguous Waters of the United States, or WOTUS, rule. The 2015 law gave the federal government unprecedented control over vast tracts of private property and was embroiled in legal trouble since its inception. 

“We are pleased with the announcement that the EPA and Army Corps of Engineers have finalized a rule that is easier to understand and narrower in scope,” McKnight said. “Cattle producers have always been the best stewards of their land, and this new rule will go a long way towards allowing them to maintain that stewardship and control over their private property.”

Crop grower groups were also pleased with the change.

National Corn Growers Association President Kevin Ross said the 2015 WOTUS rule would have increased regulatory burdens and costs for farmers so he was thankful for the change.

“Farmers are committed to protecting the environment and implementing on-farm soil health practices like planting cover crops, reducing tillage and more carefully managing crop residue. This new rule gives the flexibility and clarity needed to implement stewardship practices without the threat of government action,” Ross said. “The final WOTUS rule will protect our nation’s water and be implemented without confusion, welcome news for farmers.”

Dave Bergmeier can be reached at 620-227-1822 or [email protected]. Shauna Rumbaugh can be reached at 620-227-1805 or [email protected].