“The ruling in Sackett v. EPA was a chance for EPA and the Army Corps to correct a deeply flawed, prematurely released rule and work to truly improve water quality outcomes,” said Ted McKinney, Chief Executive Officer of the National Association of State Departments of Agriculture. “It is baffling that the revised rule does not accurately address all the issues and questions raised by the Supreme Court in the Sackett decision, nor does it address many of the questions stakeholder groups raised about the WOTUS rule EPA released at the end of last year.”

The National Council of Farmer Cooperatives (NCFC) also expressed disappointment with the revised rule. NCFC cited the latest action as a “missed opportunity” to remedy an issue that has been the source of significant concern and litigation for several years now. The American Farm Bureau Federation (AFBF) echoed a similar sentiment.

“EPA had a golden opportunity to write a Waters of the U.S. Rule that’s fair to farmers and stands the test of time, but instead chose to continue government overreach and revise only a small slice of the rule that was rejected by the Supreme Court,” said AFBF President Zippy Duval. “EPA has ignored other clear concerns raised by the Justices, 26 states, and farmers across the country about the rule’s failure to respect private property rights and the Clean Water Act.”

Agricultural Retailers Association President and CEO Daren Coppock also described the new WOTUS rule as a failure in adequately addressing the issues raised over the past several months. “Repeating mistakes will only lead to the continuation of flawed, unworkable regulations that will be litigated in the federal courts,” Coppock noted. The National Corn Growers Association (NCGA) also confirmed the response of many in the agricultural sector.

“The agency failed to open the process to public comment and engagement, which would have been extremely valuable,” said NCGA President Tom Haag. “Instead, the agency has released a rule that does not fully respect the holdings from the recent U.S. Supreme Court case on WOTUS.”

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These 2 million farms are required to abide by numerous laws enacted on state and federal levels each year. More recently, those laws, including the Waters of the U.S. (WOTUS) and Proposition 12, have been challenged in the U.S. Supreme Court (SCOTUS). 

Ray Starling, general counsel at the North Carolina Chamber of Commerce, details what the recent rulings mean for growers and the ag industry as a whole.

Waters of the United States (WOTUS)

EPA published its final definition of WOTUS on Dec. 30, 2022, which gave federal protection to large waterways, such as interstate rivers and streams, and adjacent wetlands starting in March 2023. The definition was challenged by numerous organizations at the state level.

How does the ruling impact growers?

SCOTUS’s ruling quickly caused confusion in various states, as many properties are in low-lying areas by rivers, streams and other waters that the federal government could deem a wetland. While the ruling might have disrupted operations, the EPA’s “jurisdictional arm” on-farm is much shorter now, than it was a few weeks ago, according to Starling.

“Growers in the past would say, ‘I have this piece of land that may be wet several weeks of the year. Is that subject to being deemed a wetland by the federal government?’ The new ruling says growers should only have that concern if the water, or very wet spot, has a surface water connection, or is clearly connected to navigable water. Only then can EPA interfere,” he says.

SCOTUS says the EPA’s definition of WOTUS is too broad and needs tweaked. EPA announced it plans to rectify the definition—a move Starling anticipates will come this fall.

Proposition 12

California enacted prop 12 in 2018, effectively banning the sale of pork within the state unless pregnant pigs are allowed at least 24 square feet of space and the ability to stand up and turn around in their pens.

Ag organizations quickly pushed a lawsuit to California’s side of the table, which then moved over to SCOTUS. In May, SCOTUS ruled prop 12 is constitutional, detonating a major blow to pork and the ag sector, according to Jim Wiesemeyer, policy analyst for Pro Farmer/Farm Journal.

Starling fears interstate commerce could take a foothold in the ag industry as a result of prop 12, and he’s not alone.

“There’s nothing stopping California from saying, for example, you can only sell corn in California if it’s harvested with an electric combine,” says John Dillard, principal at OFW law. 

Those fears have only amplified and revealed themselves at the state level, according to Starling.

“I’ve been asked, ‘What can we ban from California,’ and that’s not exactly what we want to hear at the Chamber of Commerce in North Carolina. But it does create that race to the bottom instinct,” says Starling.

What can growers do to create change in the cases of WOTUS and prop 12?
    
These legislative measures didn’t develop overnight; they were crafted over many years, according to Starling. In order for these laws to be undone, or future laws to be blocked, he says it will take equally as many years of advocacy. 

Here are Starling’s suggestions for growers:

1.     Educate yourself

“The gateway of media is very fluid now compared to 20 or 30 years ago. Using blog posts and clearly unvetted information to defend ag is not the way to win,” says Starling. “We have to do better on the academic front. Find reputable sources and learn how to properly cite them.”

2.     Band together

“In many cases, like in prop 12, it’s a threat to all sectors of ag. We have to figure out how to horizontally work together instead of in verticals. Crop farmers need to learn to work alongside livestock growers to create change. Ask questions and fight for each other.”

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“A full rewrite of the Biden Administration’s WOTUS definition is the only path to comply with the Sackett decision,” NCBA Chief Counsel Mary-Thomas Hart . “NCBA is seeking summary judgement in our lawsuit against the Biden WOTUS rule and urging the Southern District of Texas to strike the rule from the books.”

Implementation of the WOTUS rule has already been temporarily stalled in 27 states after a series of other lawsuits. Responding to the various court decisions, EPA has noted the agency remains “fully committed to ensuring that all people have access to clean, safe water. We will never waver from that responsibility.” The Army Corps of Engineers and EPA are reportedly going to be “interpreting ‘waters of the United States’ consistent with the Supreme Court’s decision” moving forward.

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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 EPA and Army Corps of Engineers have asked a federal judge to remand the Trump administration’s Navigable Waters Protection Rule without vacating it.

The American Farm Bureau Federation and other ag groups wanted the administration to keep the Trump-era rule, which removed federal protection for ephemeral streams and some wetlands. AFBF President Zippy Duvall said he was disappointed in the EPA’s announcement. He said the Navigable Waters Protection Rule was “environmentally conscious” and “finally brought clarity and certainty to clean water efforts.”

“We are deeply concerned that the EPA plans to reverse the Navigable Waters Protection Rule, which puts the future of responsible protections at risk. We expected extensive outreach, but today’s announcement fails to recognize the concerns of farmers and ranchers.”

Duvall went on to say: “Clean water and clarity are paramount, and that is why farmers shouldn’t need a team of lawyers and consultants to farm.”

Meanwhile, environmental groups acknowledged that the proposal was a “step in the right direction,” but said it “lacks the urgency required to restore full legal protections for the lakes and rivers that supply drinking water to millions of people.”

Source: Agri-Pulse

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

Today, EPA and the Department of the Army will finalize a rule to repeal the previous administration’s overreach in the federal regulation of waters and wetlands. This action officially ends an egregious power grab and sets the stage for a new rule that will provide much-needed regulatory certainty for farmers, home builders, and property owners nationwide.

The Clean Water Act gives the federal government jurisdiction over “navigable waters,” which are defined as “waters of the United States” (WOTUS). Over time, the scope of jurisdiction has expanded from truly navigable waters and their major tributaries to eventually capture isolated ponds and channels that flow only after it rains. As the definition expanded, so too has Washington’s power over private property and the states’ traditional authority to regulate their land and water resources.

In 2015, the Obama administration put forward a WOTUS definition that expanded Washington’s influence over the landscape, including categorical jurisdiction over ephemeral tributaries and potential jurisdiction over isolated wetlands and ponds three-quarters of a mile from a remote tributary. The definition was so far-reaching that they needed to clarify in regulatory text that puddles were excluded. The Iowa Farm Bureau, for example, estimated that waters and wetlands within could fall under federal purview according to the 2015 definition.

The 2015 rule meant that more businesses and landowners across the U.S. would need to obtain a federal permit to exercise control over their own property, a process that can cost tens of thousands of dollars and take months or even years to complete.

Many Americans balked at this idea, reflected by the fact that the 2015 rule has been mired in litigation since it was signed. Thirty-one states and 53 non-state parties, including groups representing farming, mining, forestry, and other interests, filed complaints and petitions for review in multiple federal district and appellate courts. The rule was enjoined in much of the country as courts began to recognize the potential regulatory overreach. In fact, the 2015 rule is currently in effect only in 22 states, the District of Columbia, and the U.S. territories, while the previous regulations, issued in the 1980s, are in effect in the balance of the country. And just last month, the U.S. District Court for the Southern District of Georgia found the 2015 rule unlawfully extended the agencies’ authority beyond the limits of the Clean Water Act and violated federal Administrative Procedure Act requirements.

The ruling was a victory not just for the plaintiff states, but a broad coalition of more than a dozen private sector groups, including the American Farm Bureau Federation.

“The court ruling is clear affirmation of exactly what we have been saying for the past five years,” AFBF General Counsel Ellen Steen said. “The EPA badly misread Supreme Court precedent. It encroached on the traditional powers of the states and simply ignored basic principles of the Administrative Procedure Act when it issued this unlawful regulation. The court found fault with the EPA’s interpretation of some of the most basic principles of the CWA, most importantly which waters the federal government may regulate, and which waters must be left to states and municipalities.”

Jurists repeatedly criticized the EPA’s handling of the rulemaking, in particular its interpretation of the Supreme Court’s “Rapanos” decision, which laid out guidelines for determining where federal jurisdiction begins and ends.

The American Farm Bureau Federation, in partnership with a coalition of groups, urges repeal and replacement of the 2015 rule to ensure clean water and clear rules.