If there is one thing that universally gives farmers across the country major headaches it’s trying to determine whether water on their properties fall under the jurisdiction of the federal Clean Water Act.
Major headaches.
The 2023 U.S. Supreme Court ruling inSackett v. EPA was supposed to make it easier for farmers and other landowners to navigate, no pun intended, Waters of the U.S. (WOTUS) law. The 5-4 majority decision written by Justice Samuel A. Alito rejected the court’s tortured logic in Rapanos v. U.S. that left stakeholders without clarity in favor of something more straightforward:
“In sum, we hold that the [Clean Water Act] extends to only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they are ‘indistinguishable’ from those waters.”
There isn’t much wiggle room in Alito’s decision. Only wetlands that have a continuous and indistinguishable surface connection to a larger regulated body of water may be regulated by the CWA.
But that’s not how the Environmental Protection Agency sees it. Just ask Iowa landowner Dan Ward, who wanted to build a pond that would have torn up a farm ditch on his property. Under its amended WOTUS regulation in the wake of Sackett, EPA ruled Ward’s only-seasonally wet ditch qualified as a relatively permanent, standing or continuously flowing body of water.
The goofy folk at EPA demanded Ward pay for an assessment. And an archaeology study. And a wildlife habitat study. And, oh yeah, submit a plan to restore or build a new stream of equal size to replace the farm ditch. That’s insane.
But now there’s a new proposal looking to conform Waters of the U.S. with the Sackett ruling; released last month, it provides fresh definitions for key terms including “relatively permanent”:
“In this proposal, the agencies define ‘relatively permanent’ to mean ‘standing or continuously flowing bodies of surface water that are standing or continuously flowing year round or at least during the wet season.’ Consistent with the Sackett decision, ephemeral waters (i.e., those with surface water flowing or standing only in direct response to precipitation (e.g., rain or snow fall) ) are not jurisdictional because they are not relatively permanent.”
I imagine Ward is somewhere applauding a return to sanity.
But there’s more. The proposal also attempts to provide clarity to “continuous surface connection” language:
“In this proposal, however, the agencies would define ‘continuous surface connection’ for the first time to mean ‘having surface water at least during the wet season and abutting (i.e., touching) a jurisdictional water.’ Thus, the agencies’ proposed definition of ‘continuous surface connection’ provides a two-prong test that requires both (1) abutment of a jurisdictional water; and (2) having surface water at least during the wet season.”
Certainly, agricultural interests must be heartened by EPA’s exclusions to “ditches dug in dry land regardless of flow,” prior converted cropland, and waste treatment systems.
Environmental groups believe the WOTUS proposal is Armageddon. Just listen to Waterkeeper Alliance:
“By narrowing the scope of waters protected under the Clean Water Act, this reinterpretation removes federal safeguards from many rivers, streams, lakes, wetlands, and other vital waterways. Without oversight, these waters face increased risks from pollution, threatening clean drinking water, recreation, fisheries, and aquatic life.”
I’m not sure it’s all that. Generally speaking, I’m in favor of laws and regulations that everyone can wrap their heads around. Farmers shouldn’t have to hire a world-class law team to determine the legalities of digging a pond.
But you know as well as I, that whatever the EPA finally lands on in a final ruling sometime next year won’t be final. Not even close. If Democrats take back the White House in 2028, there will be another shiny new WOTUS proposal. Not to mention in the interim any number of lawsuits filed after EPA publishes WOTUS changes in the Federal Register.
What recent history has shown is that WOTUS regulations are temporal, amounting to a hamster spinning on its exercise wheel. A functioning Congress could codify WOTUS definitions. But it’s dysfunctional. Congress can’t even produce a federally-mandated new Farm Bill — instead relying on year-to-year extensions and, most recently, some updates Republicans snuck into the One Big Beautiful Bill Act.
None of this is lost on the nation’s farmers. Missouri Farm Bureau President Garrett Hawkins told EPA during a May listening session that “We’ve seen WOTUS definitions, guidance and legal arguments change with each administration” and that “farmers, land owners and small businesses are the ones who suffer the most when we don’t have clear rules.”
Unfortunately, EPA’s new WOTUS plan, no matter how well intended it might be, is at best a bandage for more systemic problems that can’t be solved with a rewrite. The feds have shown themselves incapable of reaching anything resembling a bipartisan solution. EPA says the new WOTUS plan inspires to give states a more significant role:
“This proposal recognizes that states and tribes know their local land and water resources best. The proposed definition of WOTUS protects water quality by affirming federal protections where appropriate and supporting the role of states and tribes as primary regulators managing their own land and water resources. Cooperative federalism has been a cornerstone of Clean Water Act implementation and the agency’s proposed WOTUS rule at last fulfills that commitment to real, shared federal and state responsibility.”
To that I say, we’ll see. It sounds noble, working together for the greater good. But it’s not outrageous to ask if EPA can actually deliver on that promise.
It makes me wonder if perhaps a better long-term solution is to turn over most of WOTUS regulation directly to state governments, and scale back the number of waterways and wetlands that fall under federal jurisdiction.
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