All nine justices agreed EPA’s “significant nexus” test — the agency’s tool to assert more authority over private land — was an overreach.

The Alabama Farmers Federation and farm groups across the country have sought clear, concise water regulation for years. Rules set in 2015 and 2023 created vague boundaries allowing federal regulation over vast areas of land as “water.”

“With this ruling, the Supreme Court has vindicated what we and other groups have said for years — the Corps and EPA had clearly overstepped the authorities granted by Congress,” said the Federation’s Mitt Walker, who manages national affairs for the state’s largest farm organization. “The court has effectively nullified the 2023 WOTUS rule and ensured future rules are consistent with the intent of the Clean Water Act.”

The 2023 rule officially remains on the books but is not enforceable by EPA and the Army Corps of Engineers. American Farm Bureau Federation (AFBF) litigation in Texas and North Dakota challenging the Clean Water Act will likely toss the rule, causing the Biden Administration to propose new, scaled-back regulations.

AFBF President Zippy Duvall welcomed the late-May decision.

“The justices respect private property rights,” said Duvall, a Georgia farmer. “It’s now time for the Biden Administration to do the same and rewrite the Waters of the United States Rule. Farmers and ranchers share the goal of protecting the resources they’re entrusted with, but they deserve a rule that provides clarity and doesn’t require a team of attorneys to properly care for their land.”

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WOTUS appears in the federal Clean Water Act of 1972 and empowers the U.S. Environmental Protection Agency and the Army Corps of Engineers to protect the waters. The definition covered by WOTUS is not altogether clear. It mentions “navigable” and “interstate” waters, and while the EPA and U.S. Army Corps say the rule was created using, “the best available science, and extensive implementation experience stewarding the nation’s waters,” the final rule comes prior to the Supreme Court weighing in on a Sackett v. EPA case surrounding WOTUS.

The rule will be final 60 days after publication in the Federal Register, which happened on Dec. 30, and a Jan. 19 webinar will be held on the rule. 

Here’s what agricultural organizations and constituents are saying about WOTUS:

The National Association of State Departments of Agriculture issued the following statement regarding WOTUS:

“The EPA’s latest rule on defining “waters of the United States” is a statement of federal overreach that ignores states’ authority to regulate intrastate water quality and the Clean Water Act’s statutory mandate for cooperative federalism. In turn, although we recognize EPA’s attempt at clarifying through a roster of exemptions, its rule ignores the voices of nearly all in American agriculture who have long been seeking clarity on this issue, especially regarding the debate over what is and is not a navigable water,” NASDA CEO Ted McKinney said.

“Farmers are committed to being responsible stewards of the land and water that they use to grow food, and the effectiveness of WOTUS should be taken with the same seriousness,” McKinney said.

American Farm Bureau Federation President Zippy Duvall commented on the EPA’s issuance of yet another Waters of the United States rule, replacing the Navigable Waters Protection Rule:

“We appreciate the agencies’ attempt to provide needed clarifications of the prior converted cropland exclusion and exemptions for irrigation ditches and stock ponds, but the overall rule is still unworkable for America’s farm families. The back and forth over water regulations threatens the progress made to responsibly manage natural resources and will make it more difficult for farmers and ranchers to ensure food security for families at home and abroad.”

“AFBF is extremely disappointed in the EPA and Army Corps of Engineers’ new Waters of the United States Rule. Farmers and ranchers share the goal of protecting the nation’s waterways, but they deserve rules that don’t require a team of attorneys and consultants to identify ‘navigable waters’ on their land. EPA has doubled down on the old significant nexus test, creating more complicated regulations that will impose a quagmire of regulatory uncertainty on large areas of private farmland miles from the nearest navigable water.

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The final rule removes millions of miles of streams and roughly half the country’s wetlands from protection under the Clean Water Act, which requires industries to obtain permits to discharge pollution or fill in wetlands and imposes fines for oil spills. Politico reported that it is the largest rollback since the modern law was passed in 1972, going farther than reversing what the Obama administration attempted in its 2015 Waters of the U.S. rule.

According to the USDA, the agencies streamlined the definition, provided clear exclusions, and defined terms in the regulatory text that have never been defined. The administration says the rule clearly delineates where federal regulations apply and gives state and local authorities flexibility to determine how to manage their waters.

Kevin Ross, president of the National Corn Growers Association, said the rule “gives the flexibility and clarity needed to implement stewardship practices without the threat of government action. The final WOTUS rule will protect our nation’s water and be implemented without confusion, (which is) welcome news for farmers.”

Sources: USDA, NCGA, Politico