Waters of the United States

Farmers’ Clean Water Commitment

• Farmers play a leading role in protecting our nation’s wetlands. Over the last 15 years, the number of acres enrolled in wetland and buffer practices under the Conservation Reserve Program has more than doubled (from 2.5 million acres to 5.3 million acres).
• More than 140 million acres of U.S. farmland are used for voluntary conservation efforts and wildlife habitats—an area equal to the states of California and New York combined.
• Farmers advocate for and support commonsense rules that don’t require a team of consultants and lawyers to navigate.

Where Things Stand on WOTUS

The EPA and the U.S. Army Corps of Engineers have finalized a new WOTUS rulemaking that repeals the Navigable Waters Protection Rule, doubles down on the unworkable “significant nexus test” and creates more complicated, overreaching regulations .

Meanwhile, the Supreme Court heard oral arguments in a WOTUS case (Sackett v. EPA) in October of 2022. A decision in this case should be handed down this year and could provide a lot of clarity and certainty for farmers and ranchers.

What Is the WOTUS Rule?

The new rule greatly expands the federal government’s regulatory reach over private land use because it allows it to regulate ditches, ephemeral drainages and low spots on farmlands and pastures. This could impact everyday activities such as plowing, planting and fence-building in or near these areas.

This rulemaking brings us further away from the clarity and predictability achieved by the Navigable Waters Protection Rule. This is important for farmers and ranchers because the penalties for non-compliance are significant. A simple misjudgment by a farmer in determining whether a low spot is or isn’t subject to the regulation can trigger substantial civil fines as well as criminal penalties.

Why the Navigable Waters Protection Rule?

• The NWPR was a clear, defensible rule that appropriately balanced the objective, goals, and policies of the Clean Water Act.

• Because clean water is a top priority, farmers and ranchers welcomed the clarity and common sense the NWPR provided.
• The rule did not change who oversees waterways such as lakes, rivers and many streams—and it ensured states could enforce their own robust environmental laws.

Sackett v. EPA

• In 2008, private property owners Chantell and Michael Sackett purchased a residential lot near a lake in Idaho and began preparing the lot for home construction. The EPA then ordered the Sacketts to halt construction and return the lot to its natural state, arguing that the lot fell under the jurisdiction of the EPA under the Clean Water Act.
• The Sacketts challenged this claim, and the legal dispute eventually rose all the way to the Supreme Court. In October of 2022, the case Sackett v. EPA was heard by the Supreme Court and a decision in the case is expected in 2023.
• The outcome of this case is crucial because it will answer the question of whether the “significant nexus” test is appropriate to use when determining the jurisdiction of the federal government under the CWA.
• AFBF believes the EPA and Army Corps of Engineers should halt implementation of the new WOTUS rule until a decision is reached in the Sackett case.

Get Your Clean Water Facts

• The Safe Drinking Water Act is the primary law that protects all public drinking water supplies across the U.S. Changes to Clean Water Act regulations do not reduce Safe Drinking Water Act protections.
• The Clean Water Act regulates our nation’s “navigable waters”—also called “waters of the United States.” It imposes huge fines or even criminal liability for putting almost anything into those waters without a federal permit.
• The Clean Water Act recognizes that some surface waters should be regulated by the federal government, while some should be protected under state law. The NWPR clarified which waters are subject to which type of protection. In particular, it preserved state authority over many land features that only carry water when it rains.

Farm Bureau is a member of the Waters Advocacy Coalition.