WOTUS Again

Posted on Sep 29, 2021

A rescinding of the Navigable Waters Protection Rule prompts proposed legislation to remedy the Waters of the U.S. issue once and for all.  

For a number of years, Farm Bureau has advocated for a Waters of the U.S. (WOTUS) rule that would not hinder farm families with undue federal regulations when it comes to water sources on their property while providing clarity on just what waters would fall under federal jurisdiction as it relates to the Clean Water Act.

When the Environmental Protection Agency (EPA) and the Army Corp of Engineers finalized the 2015 Clean Water Rule, it was supposed to provide such clarity, however, it created a firestorm of confusion and controversy that extended more than half a decade until the Navigable Waters Protection Rule was announced in 2020 by then EPA Administrator Andrew Wheeler and former Assistant Secretary of the Army for Civil Works R.D. James.

What seemed to be a victory for the agriculture industry now seems to be in limbo as the current administration has rescinded that rule, prompting a another review of the WOTUS issue much to the chagrin of ag organizations across the country.

“The agriculture industry has been at the forefront of promoting solid water resource management practices as it relates to conversation and water usage for years,” said Kentucky Farm Bureau President Mark Haney. “The last thing we need is to have government interference on an issue that had effectively been resolved by the very agencies that now want to revert back to a rule that proved to be confusing and harmful to farm families throughout the nation.”

Don Parrish, AFBF Senior Director of Regulatory Relations, said the focus of the rewrite is concerning.

“There's a little bit of confusion about exactly what EPA is proposing here but they are definitely saying that they are going to repeal and replace,” he said. “They're focused on ephemeral features, and adjacent wetlands. What they're going to do is probably take a significant step back from the clarity that the Navigable Waters Protection rule provides.

Parrish added that when you start talking about ephemeral features, features that are ditches or even less than ditches, they only have water in them when it rains, all of a sudden you're really kind of glossing over the fact that you're regulating land use, as opposed to water.

“If that's their target, the whole issue of where water ends and land begins, there's a real question mark on the landscape, and it's going to create all kinds of issues,” he said. “I don't know where this is going, but it is clearly going to be a really detailed and a really significant fight and (we) need farmers and ranchers to understand that this is not a fight about protecting water quality, because the Navigable Waters Protection rule does that, this is a fight over land use.

Since the announcement of the rescinded rule, lawmakers have been busy looking into measures that could rectify the situation once and for all.

The most recent action came from Senator Rand Paul (R-KY.) with the reintroduction of the Defense of Environment and Property Act of 2021.  

According to a press release from Paul’s office, the bill:

  • Defines “navigable waters” as “navigable-in-fact, or permanent, standing, or continuously flowing bodies of water that form geographical features commonly known as streams, oceans, rivers, and lakes that are connected to waters that are navigable-in-fact”
  • Clarifies the jurisdiction of the EPA and Corps of Engineers
  • States that “ground water” is State water and not to be considered in asserting Federal jurisdiction
  • Prohibits the use of a “significant nexus test”
  • Prohibits the EPA and Corps of Engineers from creating new rules defining “navigable waters” or expanding or interpreting the definition of “navigable waters” unless expressly authorized by Congress.

Haney thanked the Senator for his recognition of the issue and his efforts to bring a more final solution to the WOTUS dilemma.

“We offer our thanks to Senator Rand Paul for introducing the Defense of Environment and Property Act of 2021 as we look forward to the clarity such legislation would bring to the Waters of the U.S. issue,” he said. “Farm families have always been on the forefront of good stewardship when it comes to natural resources, but we need to have some clear direction on the definition of navigable waterways that are defined in statue, not by regulations that are subject to change with every new administration. We believe this bill will do just that.” 

The Senate version of the bill is cosponsored by Senators Marco Rubio (R-FL) and Ted Cruz (R-TX). Representative David Rouzer (R-NC-7) plans to introduce companion legislation in the House.