Ag groups seek return of exemptions in WOTUS proposal
Past definitions of "waters of the U.S." have included specific exemptions for agriculture, but they are mostly absent from current WOTUS proposal from the Biden administration. Farm groups hope to have them restored before the rule is finalized.
WASHINGTON – As the Biden administration attempts to create its own definition of “waters of the U.S.” one of the big concerns for agriculture is what is not in the current proposal – specific exemptions for farms that have been in place in the past.
“I think the lack of exclusions is one of the biggest differences,” Scott Yager, National Cattlemen’s Beef Association chief environmental counsel, said of the current proposed definition of waters of the U.S. rules of the past.
Past definitions have clearly spelled out that some things, such as ponds for watering livestock, were not considered waters of the U.S.
“We hope they can correct that,” Yager said.
And there is still time for the Environmental Protection Agency and U.S. Army Corps of Engineers, the agencies that define waters of the U.S., to make that change. The agencies are taking comments on the proposed definition until at least Feb. 7.
The proposed rule only has two exclusions spelled out: one for wastewater treatment and the other for wet areas that had been drained and turned into farm fields, usually referred to as prior converted cropland or PCC.
But Yager noted that the proposed rule also removed the definition for what qualifies as prior converted cropland, creating more ambiguity for farmers.
Removing that definition was a “downgrade, big time, for farmers and ranchers,” Yager said.
Courtney Briggs, senior director on congressional relations with the American Farm Bureau Federation, said the WOTUS rule that the Trump administration had tried to put in place, the Navigable Waters Protection Rule, was much clearer for farmers.
“Under NWPR, they had made some very helpful clarifications under PCC that we would have wanted restored,” Briggs said. “So we certainly hope the agencies will take a look at PCC and make sure that there’s clarity and certainty for farmers.”
If there is a question about whether a water or even a ditch falls under WOTUS, it can mean bringing in hydrologists and other consultants with the Army Corps making the ultimate decision on what falls under federal jurisdiction.
A key piece of language in the proposed rule is determining whether a water falls under WOTUS by using the “significant nexus” test. The term “significant nexus” comes from a 2006 Supreme Court ruling on WOTUS, one of many court decisions on the controversial topic.
The rule being considered relies more on the nexus test than either the Trump-era rule or the Clean Water Rule from the Obama administration. Farm and business groups criticized the Obama rule as expanding federal authority too far.
If changes to a wetland or ditch could alter the chemical, physical and biological integrity of downstream waters, it could be considered jurisdictional under the Clean Water Act.
“If it’s more than speculative or insubstantial … then it would have a significant nexus,” said Stacey Jensen, assistant for regulatory and tribal affairs in the Office of the Assistant Secretary of the Army for Civil Works.
If the exclusions were put back in place, that could alleviate many ag concerns, Yager said.
“If you know that your stock pond and your farm pond or your ditches are excluded from the definition of WOTUS, then you really don’t have to worry about too much else. You can kind of stop the analysis there,” Yager said. But, “if there are not clear exclusions for those features, then you have to go through the whole analytical process.”
And that, Yager said, is “where it gets really tricky, and really cumbersome.”
Julie Schaff Ellingson ranches near Mandan, North Dakota, and is executive vice president of the North Dakota Stockmen’s Association.
“You shouldn’t have to hire an attorney to interpret whether you are in compliance or not,” Ellingson said. “It should be plain for all to understand what the rules are. That’s something that needs to change.”
One piece of the puzzle
But the WOTUS definition is long and complicated, and as Yager says, “exclusions are just one piece of the puzzle.”
WOTUS evokes questions on government overreach, property rights and federal versus local control.
“Many of these waterways are already effectively managed by state and local government and by individual landowners and so you don’t need the federal government swooping in and also causing some states rights issues,” Ellingson said, referencing North Dakota’s successful challenge of Obama WOTUS rules.
And WOTUS affects far more than agriculture.
Adam Pugh, the associate legislative director for agriculture and rural affairs with the National Association of Counties, notes that counties own about 46% of all roads in the U.S. and 38% of the bridges. Any bridge over a WOTUS will require a federal permit.
“It can slow down a lot of infrastructure projects,” Pugh said.
A 60-day comment period was set when the proposed rule hit the Federal Register on Dec. 7, and many ag and business groups almost immediately called for more time to review the complicated proposal.
“It’s such an important issue, they’ve got to get it right,” Yager said.
No matter how the final rule ends up reading, Yager said there will be groups on both the political left and right that will not be satisfied, and legal challenges are inevitable.
But Yager notes that the makeup of the Supreme Court has changed a lot since the last major WOTUS ruling in 2006, with recent appointees “having a very conservative view on property rights.”
Pugh said the hope is for “a good rule that both protects the environment and isn’t overly burdensome,” but one that also has some staying power.
Briggs in her role with Farm Bureau said, “I hear from a lot of folks in the regulated community who ask ‘how can we prevent this ping-ponging back and forth because the rule seems to change with every administration?’ And it’s either going to be up to Congress to crack open the Clean Water Act and make changes, which is almost politically impossible, or you have the Supreme Court who could perhaps bring down a decision that could provide more clarity.”