Ag News

Duvall: new WOTUS rule a step in wrong direction

by American Farm Bureau

Posted on Jan 12, 2023 at 0:00 AM

On Dec. 30, the U.S. Environmental Protection Agency released its updated Waters of the U.S. (WOTUS) Rule, which would impose legal and administrative burdens on farmers. The rule expands federal overreach on private land and brings back the “significant nexus” test for U.S. Army Corps of Engineers and EPA representatives to use to determine which areas qualify as “ephemeral waters” under the Clean Water Act. Landowners will have to consult with attorneys to pursue compliance with the rule.

The rule is expected to be published in the Federal Register in mid-January and implemented within 60 days. 

Meanwhile, a Supreme Court ruling in Sackett, v. EPA, which centers on what qualifies as WOTUS, is expected in the coming months. The court heard arguments in the case during its October 2022 session.

Both Georgia Farm Bureau and the American Farm Bureau Federation support keeping the Clean Water Act rules established in 2020 under the Navigable Waters Protection Rule.

In the Jan. 4 installment of his column, The Zipline, American Farm Bureau Federation President Zippy Duvall expressed disappointment in the move.

“The EPA’s new Waters of the U.S. rule is a giant step in the wrong direction,” Duvall wrote. “Instead of making federal regulations more clear, the rule reinstates confusing standards that have already caused decades of uncertainty and litigation.”

Duvall said the rule gives the government sweeping authority over private lands and will require teams of lawyers and consultants for common and necessary farming activities.

“We worked with the EPA’s staff and leaders while they were drafting the rule, hoping our input would make these regulations clear and fair, but I’m deeply disappointed in the outcome,” Duvall wrote. “Farmers and ranchers share the goal of protecting our nation’s waterways, but we deserve rules that don’t require hiring experts to tell us if we can farm our land.”

The overreach under the new WOTUS rule could subject farming activities like moving dirt, plowing, or building fences to require a federal permit, resulting in more paperwork, delays, and lawyers.

“Instead of being treated as partners in protecting our nation’s water supply, the federal government wants to dictate what we can and can’t do on our farms,” Duvall wrote.

U.S. farmers have increased practices that reduce soil erosion and keep nutrients in their fields, increased the use of cover crops and placed over 140 million acres of land into voluntary conservation programs.

“We’ve installed buffer strips to filter water coming off our fields and installed protective zones and terraces – all to protect water quality for our families and yours,” Duvall wrote. “EPA held a slew of listening sessions about the rule, but then disregarded what they heard. Now we will use every tool in our toolbox to arrive at a rule with clear and common-sense parameters that allow Americans to manage their land without an army of lawyers. Farmers – and all landowners – deserve better.”

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