On Friday, the Environmental Protection Agency and the Army Corps of Engineers announced a final rule establishing the definition of “Waters of the United States.” Many farm and ag groups have reacted to the news.
The National Cattlemen’s Beef Association responded to the newly-Published Waters of the U.S. Rule. The group says farmers and ranchers have dealt with the whiplash of shifting WOTUS definitions for far too long. “While the new rule retains longstanding exclusions for certain agricultural features, it still creates new uncertainty for farmers, ranchers, and landowners,” says NCBA Chief Counsel Mary-Thomas Hart.
NCBA previously asked the Environmental Protection Agency to retain agricultural exclusions for small, isolated, and temporary water features that commonly appear on farms and ranches. The new rule fails to clearly exempt isolated and ephemeral features from federal jurisdiction and relies on “case-by-case” determinations to assess whether a feature is federally regulated.
Hart says the timing of the rule couldn’t be worse as the Supreme Court is currently considering Sackett v. EPA, which would provide much-needed clarity to the WOTUS definition. “Today’s rule seeks to directly preempt the Supreme Court,” she says.
Other groups and politicians reacted to the news as well and you can view their statements below:
New Waters of the U.S. rule creates regulatory uncertainty for farmers
ARLINGTON, Va. — The National Association of State Departments of Agriculture issued the following statement regarding the U.S. Environmental Protection Agency’s and U.S. Department of the Army’s announcement of a final rule on Waters of the United States:
“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.
As NASDA previously stated in multiple sets of comments and input throughout this regulatory process, the Clean Water Act establishes limits on federal jurisdiction and the role of the federal government to regulate interstate commerce, thus recognizing the role of states in regulating non-navigable waters.
Further, the release of this ruling ahead of the U.S. Supreme Court ruling on Sackett v. EPA wastes tremendous federal, state and private sector resources as the decision of SCOTUS will invariably shift water regulations across the United States yet again significantly. This is in stark contrast to the comments previously made by Administrator Regan to the U.S. House Appropriations Subcommittee on Interior and the Environment that the EPA’s rule would “be in a position to respond and adjust to the Supreme Court ruling.”
Statement of NCFC President Chuck Conner on WOTUS Rule Publication
Washington, D.C. (December 30, 2022)—“The WOTUS rule published today by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers, although an earnest attempt to address a longstanding issue, will greatly amplify uncertainty for America’s farmers and ranchers, as federal regulators will be making case-by-case determinations based on highly subjective factors. While the rule does reel-in some of the dramatic regulatory overreach seen in the 2015 rule published during the Obama administration, it would still bring significant acreage that was not subject to regulation prior to 2015 under federal jurisdiction. It is especially unfortunate that this action has been taken while the Supreme Court continues deliberations on a WOTUS case heard this fall, since a decision in that case may once again require changes to the rule.
“NCFC and the farmer-owned cooperatives we represent remain fully committed to federal, state and local efforts to work with agriculture to protect surface water quality throughout the US. We do not believe the provisions in this rule will help us work together towards that critical goal.”
Thompson Statement on EPA’s Final WOTUS Rule
WASHINGTON, DC — Today, the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers released their final definition of “Waters of the U.S.” (WOTUS). Following the announcement, Chairman-elect of the House Committee on Agriculture, Rep. Glenn “GT” Thompson, issued the statement below:
“Since day one of the Biden Administration, America’s farmers, ranchers, and producers have fallen under constant attack: burdensome regulation, record inflation, high input costs, the politicization of crop protection tools, supply chain disruptions, and now an egregious government land grab.
The final WOTUS rule issued today by the Biden Administration is another step in the wrong direction. Simply recognizing long-standing agriculture exemptions that have been too narrowly applied for decades does not make up for, once again, plunging our rural communities into ambiguity.
Finally, the timing of the rule is questionable given the fact that the Supreme Court is due to rule on a case related to WOTUS regulations in the coming months. I am concerned this action will only result in continuing the regulatory whiplash.”
|Statement on Biden Administration New WOTUS Definition|
|WASHINGTON – U.S. Senator Kevin Cramer (R-ND), member of the Senate Environment and Public Works (EPW) Committee, issued the following statement on the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers’ (Army Corps) new final Waters of the United States (WOTUS) definition:
“The regulatory ping pong of WOTUS regulations will seemingly never end. Establishing a new WOTUS definition before the Supreme Court has ruled on Sackett v. EPA only adds to the regulatory confusion. When Administrator Regan and Assistant Administrator Fox visited North Dakota, I reiterated the empowerment of EPA and Army Corps bureaucrats by giving them federal authority over non-navigable ponds, ditches, and potholes is a recipe for disaster. Our state is and will be the epicenter of this debate and we have been a leader in the fight against federal overreach of our waters. We need an enduring, legally defensible rule to provide regulatory certainty. I look forward to the Supreme Court’s ruling on the matter.”
In February 2022, Senator Cramer and his Republican colleagues on the EPW committee sent a letter to EPA Administrator Michael Regan and Assistant Secretary of the Army for Civil Works Michael Connor requesting the Biden Administration immediately halt plans to finalize a novel definition of WOTUS until after the Supreme Court’s ruling in Sackett v. EPA. Learn more here.
Senator Cramer also joined Senator John Thune (R-SD) and the entire Senate Republican Conference in urging the EPA and Army Corps to suspend the pending rulemaking to redefine the scope of waters protected under the Clean Water Act, specifically WOTUS, until the U.S. Supreme Court completes its consideration of Sackett v. EPA, a case that is expected to have major implications on CWA scope and enforcement. Learn more here.
Last November, Senator Cramer hosted EPA Assistant Administrator for Water Radhika Fox and Acting Assistant Secretary of the Army for Civil Works Jaime Pinkham in Bismarck for a WOTUS listening session. At the listening session, Assistant Administrator Fox and Acting Assistant Secretary Pinkham heard firsthand from farmers, landowners, and stakeholders who deal with WOTUS as EPA works to craft a new rule. Learn more here.
|Thune Statement on Biden Administration’s Over-Reaching WOTUS Rule
“I strongly oppose this thinly veiled land grab, I urge the administration to abandon this retread of a misguided rule, and if it does not, I will push for the Senate to overturn this over-reaching regulation.”
|SIOUX FALLS, S.D. — U.S. Sen. John Thune (R-S.D.) today released the following statement after the Environmental Protection Agency (EPA) published its new Waters of the United States (WOTUS) rule:
“Like President Obama before him, President Biden is trying to greatly expand the reach of the federal government into the lives of farmers and ranchers,” said Thune. “Opening up nearly every body of water to federal jurisdiction would be a nightmare for property owners and producers in South Dakota and across the country. I strongly oppose this thinly veiled land grab, I urge the administration to abandon this retread of a misguided rule, and if it does not, I will push for the Senate to overturn this over-reaching regulation.”
· In September 2022, Thune helped introduce the Simplify Timelines and Assure Regulatory Transparency Act, comprehensive federal regulatory permitting and project review reform legislation that would codify sensible regulations like the Navigable Waters Protection Rule instead of the Biden administration’s over-reaching WOTUS proposal.
· In April 2022, Thune joined an amicus brief in support of the petitioners in the pending case Sackett v. Environmental Protection Agency (EPA), which is directly related to how much authority the federal government has over states and private citizens to regulate “waters of the United States” under the Clean Water Act (CWA).
· In February 2022, Thune led the entire Senate Republican Conference in urging the EPA and the U.S. Army Corps of Engineers to suspend the pending rulemaking to redefine the scope of waters protected under the CWA, specifically WOTUS, until the U.S. Supreme Court completes its consideration of Sackett v. EPA, as the case is expected to have major implications on CWA scope and enforcement. Oral arguments for the case were heard on October 3, and an opinion is not expected until 2023.
Armstrong Statement on the Biden Administration’s Final WOTUS Rule
BISMARCK, N.D. – Congressman Kelly Armstrong (R-ND) released the following statement after the Environmental Protection Agency and U.S. Army Corps of Engineers released their final Waters of the United States (WOTUS) rule.
“The return of WOTUS would be a disaster for North Dakota’s farmers and ranchers,” said Congressman Kelly Armstrong. “I am disappointed that the Biden administration is determined to bring it back despite warnings from ag producers that it will harm their livelihoods. We have to keep fighting against harmful policies that don’t do anything to keep our air and water clean.”