Muddy Waters: Agriculture says EPA needs to provide a more clear definition of Waters of the United States

The Environmental Protections Agency implemented the latest version of its infamous Waters of the United States (WOTUS) rule this week.

“The Rule is operative in all jurisdictions of the United States except Idaho and Texas,” reported the EPA in a news release on March 20, 2023.

NCBA President, Todd Wilkinson, whose family feeds cattle near DeSmet, South Dakota, said that not only is the rule itself problematic for the agricultural industry, but that the timing of the implementation was a head-scratcher.

Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming filed essentially a “restraining order” said Wilkinson, asking that the WOTUS rule not be implemented at least until the Supreme Court ruling is released.

The NCBA has joined as an intervenor in both this case, and also the Texas and Idaho case. The Texas and Idaho Attorneys General recently won their case, which means the WOTUS rule will not be implemented in those states, at least at this time.

The Supreme Court is expected to rule on whether or not the EPA will have to provide a more clear definition of Waters of the US.

Wilkinson said the 24-state suit was filed about 3 weeks after the Idaho and Texas one, so maybe a ruling is forthcoming on that one.

“Hopefully they will take the same position as the Texas ruling,” he sad pointing out that since the suit is being heard in the North Dakota court, hopefully the court will be friendly to agriculture.

“In the short term, we are asking the EPA to put everything on hold until the Supreme Court decision comes out, which is a matter of months,” he said.

Ultimately, the NCBA’s biggest concern is that the “playing rules” are too vague. “it’s like a basketball game – you know you can’t double dribble. Well in this case, they keep redefining the rules and nobody knows how to play the game,” he said.

There were some positives aspects in the current rule including some ag exemptions, but “this is still a massive federal land grab over what should be a state’s jurisdictional issue,” said Wilkinson.

Mark Watne, the North Dakota Farmers Union president and a Minot-area farmer said he himself isn’t in the process of tiling farm ground or anything like that, but the farmers that are could be affected by the recent WOTUS implementation, which could give the US control over water or temporary water sources that the government previously had no jurisdiction over.

His group agrees that the definition of Waters of the United States need to be very well defined.

As for drainages, and tributaries, the government doesn’t need to regulate them all, he said.

“When you say what drains to what…what is the baseline? You can assume everything drains somewhere with rain. These definitions are extremely important,” he said.

While his organization is “semi-satisfied” with the current rule and is not participating in the suits, he has some concerns.

“The concern is that if this increases restrictions, right now, the interpretation and rules lie with the EPA and Corps,” he said. He doesn’t believe those agencies to be friendly to ag as a whole.

“If this law, without correct definitions, is used, you could have a whole different set of definitions from the Corp of Engineers and EPA. It’s not whether or not we have WOTUS, we just don’t need a whole bunch more rules,” he said.

Wyoming Farm Bureau president Todd Fornstrom from Laramie is also concerned.

His group is also hoping for a clear and concise definition of navigable water.

“In Farm Bureau, we think you should be able to walk out, look at your ranch, and tell who regulates it,” he said. He’s worried the new rule will force farmers and ranchers to hire ghird party entities to gain approval from the Corps of Engineers.

“I’m a westerner and I feel like thy use us as a playground. They want to see us and look at us, but it doesn’t matter to them how they affect our industry or ability to make a living.”

Fornstrom said his organization has a good relationship with the state department of environmental quality. “They understand how important water quality is.”

He added that water quality matters more to the locals than anyone else. “I raise my family on these wells. We fertilize, we spray, I’m not going to jeopardize the health of my family. We have to live here. Those people in Washington, DC don’t.”

“At one time it was ‘water I can float my boat on’ I don’t know what the federal government has to do within the state. They only have jurisdiction when it comes to interstate commerce,” he said.

“Since it’s inception, the federal government has decided that we are better off when they regulate us than when we regulate ourselves,” said Fornstrom.

Wilkinson said that producers should consider talking to their NRCS office soon, if they are wondering about any projects they are mid-way through.

“If the federal government now has jurisdiction over what you are doing on your land, you may need to get proper permitting or find out if it’s allowed,” he said. “This is the third time we’ve changed the rules in the last 10 years,” he added.

“We’d like to tell the producers what all of this means for them, but unfortunately it has just muddied up the water for them,” said Wilkinson