EPA Finalizes WOTUS Definition

The Biden EPA has issued a final rewrite of Trump-era WOTUS reforms, and farm groups like National Cattlemen are not happy.  NCBA Chief Counsel Mary-Thomas Hart said the Biden Administration’s final Waters of the U.S. rule is tainted.

“The rule doesn’t clearly exempt isolated or ephemeral features from federal jurisdiction, but instead, subjects both those features to case-by-case determinations, which means that farmers, ranchers, or landowners across the country could be required to pay a lot of money or spend a lot of time trying to figure out if their isolated or ephemeral features are federally jurisdictional.”

Requiring permits or resulting in added EPA enforcement.  So, beyond some exemptions for drainage ditches, stock ponds, and prior-converted cropland, Hart sees the Biden rule as a reversal of Trump-era WOTUS reforms.

“This is a significant expansion beyond the Navigable Waters Protection rule, and the Biden Administration sought to find some middle ground, between the 2015 rule and the 2020 rule. So, we knew that there might be a slight expansion, but this leans much more toward the 2015 Obama rule than it does toward the Navigable Waters Protection rule.” 

All that, as Hart said six of the nine Supreme Court justices that heard Sacketts vs. EPA in October, are reviewing for the first time the years-old Rapanos ruling on when a wetland is a water of the U.S. based on its permanence and nexus to a navigable water.

"They seemed quite convinced that those were failed standards, that they had watched the definition ping-pong back and forth from administration to administration, and they thought that there ought to be a new standard. So, I will not be surprised, if, when the Supreme Court issues its decision in spring, 2023, we see a completely new test and EPA is required to go back to the drawing board.”

Hart charges the timing of the EPA final rule couldn’t be worse and seeks to directly preempt the ongoing Supreme Court litigation, leaving the WOTUS question murkier than ever until the high court rules months from now.

American Farm Bureau also stated that it’s “extremely disappointed” in the final WOTUS rule and charges it will impose a “quagmire of regulatory uncertainty” on private farmland miles from the nearest navigable water.

“The National Association of Wheat Growers (NAWG) is deeply concerned that the EPA and U.S. Army Corps rushed to get this revised definition out prior to the end of the year instead of waiting for the decision in the Sackett case before the Supreme Court,” said NAWG CEO, Chandler Goule. “While we continue reviewing the final rule, since the rulemaking process was announced last year, NAWG has stressed that farmers need clarity regarding jurisdiction, recognize important agricultural water features, and more long-term certainty from the courts and administrations.” 

Members of the Western Caucus expressed their displeasure with the EPA's decision:

“This rule is yet another bureaucratic attack on rural America,” said Chairman Dan Newhouse. “Western Caucus Members and the rural communities we represent have consistently called on the Administration to provide regulatory certainty for farmers, ranchers, small businesses, and landowners – most recently, requesting that the Administration not move forward with rulemaking until the Supreme Court has ruled on Sackett v. EPA. Today, it became crystal clear that we have been ignored. Not only is this rule premature, but it is ultimately detrimental to rural communities – and clean water conservation efforts – across the United States. We will continue to fight for effective locally-led efforts to protect our clean water and against one-size-fits-all mandates.”

“The Obama WOTUS rule drastically expanded the jurisdiction over bodies of water like streams and ponds leaving large swaths of Iowa land in the hands of the federal government,” said Vice Chair Mariannette Miller-Meeks. “I am extremely disappointed in the Biden Administration’s decision to finalize a similar version of this failed rule which will have terrible consequences for our farmers, ranchers, and landowners in Iowa. Any clean water initiatives by the federal government should be focused on clearly defined bodies of water.”

“Today’s announcement by the Biden Administration on their new rule for Waters of the U.S. (WOTUS) is disappointing.  This rule is both poor policy and badly timed.  It is another example of this Administration’s determined adherence to the demands of environmentalists at the expense of hard-working Americans.  While cloaked a little differently, this new WOTUS rule will once again place overly burdensome regulations on our farm families, small businesses, and entire communities further harming our economy — not to mention making critical infrastructure projects that much more expensive,” said Vice Chair David Rouzer. “While I appreciate the EPA’s acknowledgement that the Supreme Court has already heard arguments in Sackett v. EPA with a ruling soon expected, this further underscores how ill-advised it is for the administration to rush a new rule given the Court’s forthcoming decision will impact any new definition of WOTUS.”

“Why does every Democrat administration need to make a rule giving the federal government more power over farming and private property?  The federal government doesn’t need to regulate puddles, ditches, seasonal creeks or culverts.  All this rule does it make it more difficult to grow food or build anything,” said Vice Chair Doug LaMalfa. “Frankly, that seems like to whole point – to make every day Americans ask permission from their government for basic tasks like cleaning a ditch, repairing a road, or building something on your own property.  I say NO, and I’ll be leading an effort to stop yet another ridiculous rule.”

“Biden’s WOTUS rule creates a regulatory headache for economic drivers like farmers, ranchers, manufacturers, miners, and more," said Vice Chair Pete Stauber. “Similar to the old Obama Administration WOTUS rule, this new rule is a gift to lawyers and activists, and creates hardship for my district. This is simply unacceptable but I expect no less from this activist administration.”

“It appears that the Biden Administration is attempting to over-regulate America’s farmers into extinction by reimplementing this nonsensical version of the devastating Obama-era WOTUS rule,” added Vice Chair Bruce Westerman (AR-04). “These actions demonstrate a lack of care for the needs of rural America, our agriculture industry, and for private property rights. I look forward to a Republican House working to overturn this rule.”

“I am extremely discouraged by the EPA’s actions regulating wetlands and waters in a manner inconsistent with the Clean Water Act,” said Representative Frank Lucas (OK-03). “During this time when increased agriculture production and growth are critical, the rule fails to provide certainty for America’s farmers and ranchers. Furthermore, the Biden Administration’s contradictory rule ensures lengthy litigation surrounding the scope of federal regulatory authority of our nation’s waterways will continue with confusion and regulatory uncertainty. Oklahoma’s farmers, ranchers, and landowners have demonstrated their responsible stewardship of the land for generations, and I will continue to stand with my colleagues on both sides of the aisle in opposition to the continued inconsistent interpretation of the Clean Water Act.”

“Today, the Biden Administration finalized a definition of “waters of the U.S.” that threatens the rights of Idaho’s farmers, ranchers, and private property owners,” said Representative Russ Fulcher. “Water is a lifeline for the Gem State – a key natural resource for many of our most important industries – and this decision will only empower federal bureaucrats.”

“Joe Biden’s EPA knows full well this ruling will face immediate litigation in court,” said Representative Markwayne Mullin. “The idea that a drainage ditch in Oklahoma is now a federally regulated, navigable waterway is absurd. This is nothing more than a Christmas present to Biden’s radical environmentalists.”

“This change of the WOTUS rule is a massive landgrab that will expand federal control to ponds, puddles, and even ditches all under the false pretense that it will make our waters cleaner. Meanwhile, farmers will be drawn into crosshairs with the EPA over using the safe crop production process they have used for years, and landowners could face hefty fines for failing to comply with the unclear language,” said Representative Rick Crawford. “We all want clean water, but WOTUS now negates existing local and state laws and refutes the historical role farmers, ranchers, and landowners have in being the original good stewards of their land."

“Restoring the Obama-era WOTUS rule will restore a world of vague and disastrous regulations for Georgia’s farmers, small businesses, homeowners, local government, and families, who do not need an unelected bureaucrat to tell them how to use the Peach State’s natural resources,” said Representative Buddy Carter. “Under President Trump, there were clear and certain guidelines, ones that should transcend political party and remain law.”

“As a lifelong farmer, I know firsthand the challenges government overreach places on the day-to-day operations of farms and businesses,” said Representative David Valadao. “Giving the federal government more control over our water has already once proven devastating for rural communities. The Biden administration’s EPA rule will further burden our farmers, ranchers, and small businesses in the Central Valley. I am hopeful that the Supreme Court will put an end to this regulatory nightmare when Sackett v. EPA is decided.”

“The goal of President Biden’s Waters of the U.S. rule is to give unelected bureaucrats even more command and control over the lives of rural Missourians,” said Representative Jason Smith. “The Trump administration’s rule protected Missouri’s water, incorporated sound science, and accommodated the needs of farmers, ranchers, landowners, and small businesses. But getting rid of this carefully crafted rule means that federal bureaucrats will again have the authority to regulate any body of water – whether it’s a puddle, ditch, pond, or creek – passing through or standing on private land. I’ll continue fighting tooth and nail to protect all these stakeholders from the Biden administration’s overreaching WOTUS rule and any other efforts by Washington Democrats to force their radical agenda on our communities."

“We had a sensible rule for WOTUS under the last administration that left most decision-making and regulation to the states. Each state has unique circumstances to consider, and we cannot expect those to be solved by a one-size-fits-all plan. Minnesota’s clean water standards are as high, if not higher, than the federal standards. We are the land of lakes. We know what we’re doing, and we do not need federal involvement,” said Representative Michelle Fischbach. “This rule includes several vague standards that fail to provide certainty for stakeholders. It will be important to hold the EPA accountable to ensure they do not overstep their authorities.”

“Using WOTUS as a political football creates greater instability and challenges for our producers,” said Representative Dusty Johnson. “It was poorly written to begin with and has created much confusion in rural America. The new WOTUS rule is a gross overreach of federal power.”

“EPA’s WOTUS decision is yet another example of blatant executive overreach. The government should not dictate land use on private property or the farming practices of producers and ranchers,” said Representative Adrian Smith. “I am steadfastly opposed to this decision because of the devastating impact it will have on landowners in Nebraska and across the country.”

“The return of WOTUS would be a disaster for North Dakota's farmers and ranchers," said Representative Kelly Armstrong. “I am disappointed that the Biden administration is determined to bring it back despite warnings from ag producers that it will harm their livelihoods. We have to keep fighting against harmful policies that don't do anything to keep our air and water clean.”

“Today's WOTUS ruling is a detrimental government overreach into ponds and puddles a thousand miles from the D.C. swamp. Kansas farmers and ranchers are the best stewards of their land, but the final WOTUS rule hands over private property decisions to Washington bureaucrats,” said Representative Ron Estes. “As a Kansan and former farm kid, my colleagues and I will continue pushing back against this burdensome administration that chooses to govern with a heavy hand and disregards the common sense conservation by the men and women who actually work the land."

“States, not the federal government, should be the primary regulators of water sources and waterways within their borders. Unfortunately, the EPA’s and Army Corps’ Waters of the United States Final Rule will allow the federal government to encroach on the authority of state and local governments and the rights of landowners to manage agricultural ponds, drainage ditches, and other bodies of water,” said Representative Larry Bucshon, M.D.  “With the release of this Final Rule, the Biden Administration is taking a huge step backwards at the expense of states, localities, and private landowners.”

“Thanks to regulatory overreach, farmers, ranchers, and agricultural producers will now be forced to operate their businesses under the federal government’s sixth definition of “water” in the past ten years alone. The Biden Administration’s newest version of "Waters of the U.S." removes longstanding bipartisan exemptions for common water features like ponds or streams found on farms and ranches,” said Representative Tracey Mann. “The Biden Administration has created regulatory chaos for producers, who are working hard to keep us all fed, fueled, and clothed. Farmers are the original conservationists, and they deserve the gratitude and support of the federal government, not red tape and burdensome overregulation. They certainly don’t need Washington Democrats to tell them how to manage their own resources.”

“I am disappointed in this Administration’s latest effort to place arbitrary regulations on private property owners. For decades, Oregonians have had to bear the burden of environmental regulations written by unelected bureaucrats in DC,” said Representative Cliff Bentz. “My constituents, who earn their living from the land, understand better than anyone how to protect and sustain it for future generations. The EPA and other federal entities have wielded WOTUS to control the most basic activities of everyday Americans. I came to Washington, DC to fight these top-down, ineffective regulatory burdens so that Oregonians have the freedom to manage the land using the commonsense practices that have been passed down through generations.”

“California doesn’t have a water problem; it has a water storage problem,” said Representative Jay Obernolte.  “The previous management agreements for the Central Valley Project and State Water Project were critical to improving our water storage capabilities, protecting our environment, and ensuring reliable water supplies for our communities and the industries that form the backbone of California’s robust economy. They were science-based, peer-reviewed, and already producing encouraging results. I am extremely disappointed that the Administration has acted to reverse the meaningful progress made under these plans, and I join my colleagues in calling for the immediate reversal of this decision."

“Reinstating the Obama-era WOTUS rule is gross federal overreach, gives the government an unprecedented level of authority over ‘waters of the United States,’ and impacts almost every part of American life, especially for farmers and ranchers,” said Representative Jeff Duncan. “We fought this rule under President Obama, celebrated when President Trump removed it, and will fight for this disastrous abuse of power under President Biden to be reversed.”

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