A WOTUS Win for Farmers and Ranchers

by Mayzie Purviance

After numerous years of uncertainty, the Environmental Protections Agency (EPA) and the Department of the Army (Army) recently finalized the Navigable Waters Protection Rule under the Waters of the United States (WOTUS).  This new rule provides a clear definition for WOTUS as well as lines out federal control under the Clean Water Act.

“President Trump, EPA Administrator Wheeler, and Assistant Secretary of the Army R.D. James deserve a lot of credit for listening to cattle producers and for working with us to get us to this point.  We look forward to working with EPA and the Army Corps of Engineers to successfully implement this new rule in the years to come,” National Cattlemen’s Beef Association (NCBA) President Jennifer Houston said.

“NCBA relentlessly fought WOTUS on Capitol Hill, at the Agencies, and in the Courts,” Houston continued.  “Today, we can rest a little easier knowing that some power has been put back in the hands of landowners.”

According to the EPA, the agencies are streamlining the definition so it includes four simple categories of jurisdictional waters, provides clear exclusions for many water features that traditionally have not been regulated, and defines terms in the regulatory text that have never been further defined.

The previous rule directed agencies to protect navigable waters and was unclear to many producers, leaving it open to interpretation due to its vagueness.  The new rule adds regulation, giving some power back to individual states and tribes.

“Family farmers and ranchers have been confused by ambiguous water regulations for many years.  Now that we have a more precise definition of WOTUS, we hope that farmers will better understand which kinds of water are subject to federal authority and which are not,” National Farmers Union (NFU) President Roger Johnson said.

“But farmers don’t just need greater clarity – they also need access to clean, safe water for their families, their farms, and their communities.  These needs are not mutually exclusive; when regulating natural resources, EPA and the Army Corps of Engineers must balance certainty for farmers, ranchers, and property owners with protections for our water supply,” Johnson said.  “And while Farmers Union policy generally supports local decision-making, some states may be unprepared to regulate significantly more waterways.  Moving forward, we will review the final rule closely to assess its full impacts on family farmers and ranchers and rural communities.”

The four categories of water which are regulated federally are as follows: the territorial seas and traditional navigable waters; perennial and intermittent tributaries; certain lakes, ponds, and impoundments; and wetlands which are adjacent to jurisdictional waters.

Waters which are not under federal control and will be governed by the state are as follows: features which only contain water in direct responses to rainfall; groundwater; many ditches, including most farm a roadside ditches; prior converted cropland; farm and stock water ponds; and waste treatment systems.

Many other organizations and individuals had comments on the new WOTUS regulation, including the National Corn Growers, North Dakota Department of Agriculture, Wyoming Farm Bureau, and the Colorado Livestock Association.

Dorsey & Whitney law firm partner Thaddeus Lightfoot, who has spent nearly 30 years specializing in environmental law, said the new WOTUS regulation makes good on the EPA’s vow to publish a final rule after repealing the old regulation.  He said it also satisfies the pledge made by President Trump to act on a rule which reflects Jestice Scalia’s concurrence in Ropanos v. United States, 547 U.S. 715 (2006).

“Justice Scalia’s plurality opinion rejected the US Army Corps of Engineers position that ‘land’ wet seasonally could constitute a ‘water of the United States’ under the Clean Water Act.  According to Scalia, a water of the United States should include only relatively permanent, standing, or continuously flowing bodies of water, or waters and wetlands with a continuous surface water connection between it and a permanent water body,” Lightfoot said.

Lightfoot said the new Navigable Waters Protection Rule largely adopts Justice Scalia’s approach in the original case by emphasizing the term “navigable waters.”

“EPA Administrator Andrew Wheeler opined in a statement announcing the rule that landowners no longer must rely ‘on expensive attorneys to determine what water on their land may or may not fall under federal regulations.’  But landowners and other interested parties will undoubtedly have to rely on expensive attorneys for the courts to determine the viability of the new rule.  Environmental groups have already vowed to challenge the rule.  And if the amount and level of intensity of litigation over the WOTUS rule it replaces was any indication, it may be many years before the courts determine that landowners may rely upon the apparent certainty in the Navigable Waters Protection Rule,” Lightfoot said.


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