Another Call for WOTUS Clarity

Farmers and ranchers hold a unique bond with the land we care for. This connection often spans generations, grounded in a deep respect for the soil, water and natural resources that sustain our farms. We take pride in being entrusted with these resources and always strive to do the right thing by our land and communities. Years of regulatory tug of war on a clear Waters of the United States rule, however, have kept farmers in limbo on what they can and cannot do on their own land. That is why we are encouraged by EPA’s recent steps to provide clarity on WOTUS.

The years-long journey to clarity on WOTUS has been muddy at times, marked by significant legal and regulatory developments. It seemed like the WOTUS rule became a moving target with shifting definitions and guidelines – even after the Supreme Court’s unanimous decision in Sackett v. EPA to provide clarity.

Where We Are With WOTUS

Following the Supreme Court’s decision, the EPA and Army Corps of Engineers were given clear instructions to fix their overreaches, including reliance on the so-called "significant nexus” test. But instead, the Agencies reintroduced vague and subjective standards leaving farmers with potential permitting delays, legal challenges and overall uncertainty. Even routine activities such as plowing, planting, or fence building could result in harsh penalties or numerous hoops in obtaining Clean Water Act permits.

Farm Bureau has long called for consistent and fair guidelines surrounding the Clean Water Act. We recognize the importance of regulations around our natural resources and believe farmers—and all landowners—deserve clarity on those rules. Instead, time and again, EPA and the Corps have asserted their reach beyond what Congress intended. This continued back and forth of regulations and uncertainty is why we continued to press EPA for clarity, and why we appreciate them listening to those concerns and taking steps to finally bring WOTUS back in line.

Recommendations on WOTUS

As part of their ongoing process to clarify WOTUS, EPA recently asked for public comments as they begin to craft a new rule. Farmers and landowners are critical to this process, and we appreciate this chance to have a seat at the table to share perspectives and ensure the final rule reflects the realities of our farms and ranches. Farm Bureau, guided by our grassroots policy, submitted detailed comments to the EPA outlining some of the biggest changes our farmers need to continue stewarding the land we’ve been entrusted with.

The first recommendation in our letter to the EPA is to provide clear guardrails on the “relatively permanent” standard. The 2023 rule expanded the term and led to loose guidelines around what waters fell under federal jurisdiction. We need the EPA to explicitly exclude ephemeral and some intermittent features such as drains, ditches and stock ponds from the definition of “relatively permanent,” as the Clean Water Act and Sackett require, to minimize confusion and limit overreach. The 2023 rule also violated Sackett by including features such as wetlands that lacked a continuous surface water connection to jurisdictional water. The agencies must fix this and align with the Supreme Court’s instruction in Sackett that a jurisdictional wetland must directly connect to a WOTUS in such a way that the two are indistinguishable from one another.

The recommendations to the EPA also include the request to provide clear exemptions and exclusions so farmers can use their lands without the risk of severe penalties or expensive permits for what they have always done.

The Work Ahead With WOTUS

We are hopeful that the EPA and Corps will hear the concerns of our farmers and ranchers and finally achieve new rules that reflect the realities of life on the farm. Landowners have long been at the mercy of shifting regulations, and it’s encouraging to see steps toward clarity. We will continue to stay vocal on clear guidelines and ensure that we can continue to grow the food, fiber and renewable fuel that families at home and abroad rely on.