Practicing attorney and family farmer in Florida
photo credit: AFBF photo, Mike Tomko
In March, I had the honor of testifying before Congress on behalf of American Farm Bureau Federation and my fellow farmers and ranchers, to express concern and frustration with the new Waters of the United States rule, known as WOTUS, which took effect on March 20. WOTUS is the linchpin of the Clean Water Act, determining when the act’s regulations apply to a range of activities. Under this WOTUS, the act may regulate normal farming and ranching activities.
As farmers and ranchers who depend on healthy soil and clean water, we support the Clean Water Act and its goals. We cannot support a WOTUS definition that is so ambiguous it creates unmanageable risk and confusion for us in our daily work. We have struggled with uncertainty related to WOTUS for decades, enduring near constant rulemaking and litigation. This WOTUS rule fails to provide a workable definition, too.
This new WOTUS definition greatly expands the federal government’s reach over private property, asserting jurisdiction over ephemeral drainages, ditches, swales and low spots in farm fields and pastures. Its “significant nexus” test allows the Environmental Protection Agency and Army Corps of Engineers to regulate these features, on a case-by-case basis, using vague language vulnerable to subjective interpretation. Considering working landscapes to be WOTUS means that everyday farm and ranch activities that move dirt or apply products to the land (such as planting crops, cultivating fields, fence building or ditch maintenance) run the risk of federal regulation and enforcement.
We have struggled with uncertainty related to WOTUS for decades, enduring near constant rulemaking and litigation.
The only way we as farmers can mitigate the risk of this WOTUS rule is to invest time, expertise and a lot of money to obtain a jurisdictional determination from the agencies on whether the act does or does not apply to our land. The cost of work done by biologists, engineers, lawyers and possibly geologists for the determination will be borne by the farmer. If we don’t seek a determination, we have no way of knowing if our normal farm and ranch work will trigger the act’s harsh civil and criminal penalties. Adding insult to injury, the agencies falsely claim that the costs to farmers to comply with this WOTUS rule are de minimis (too small to be taken into consideration).
We are disappointed that the Biden administration ignored requests to delay WOTUS until the Supreme Court rules on a pending case, Sackett v. EPA, that should provide clarity on the appropriate scope of WOTUS. We are also frustrated that the Biden administration vetoed a bipartisan congressional resolution to block the implementation of this new rule.
But, we do have hope. A coalition of twenty-four states sued to block this WOTUS rule in the United States District Court in North Dakota. The Court granted the states’ request for a preliminary injunction on April 12, finding that the factors for granting the request to block this rule all weighed strongly in favor of the states. The order states in part, “The Court finds that the new 2023 rule is neither understandable nor ‘intelligible’ and its boundaries are unlimited,” raising a number of statutory interpretation and constitutional concerns. Injunctions blocking the implementation of this rule now exist in 27 states.
Now we wait and hope while the courts decide.