EPA Fails the Test on WOTUS, Again

By Zippy Duvall, American Farm Bureau President

Second chances don’t come along every day. But every once in a while, we get a chance to start fresh, learn from our mistakes and do better. The Environmental Protection Agency and the Army Corps of Engineers had that chance with WOTUS. They had a prime opportunity to bring clarity to clean water regulations and respect the efforts of farmers and ranchers across the country. Instead, the EPA threw that second chance away, and chose a shortcut rather than clearing away the muddy uncertainty and government overreach.

Farmers and ranchers know the importance of clean water firsthand—our livelihoods depend on it—and we know our families, our neighbors and our communities are counting on us. That’s why farmers across the country take active steps to protect the water on and around our land—from planting cover crops to hold the soil in place to cutting back on tilling to prevent run off. At Farm Bureau, we have long called for EPA to recognize and respect farmers’ stewardship by providing clarity with clean water regulations.

Just a few months ago, farmers saw a landmark victory at the Supreme Court in the Sackett case. The Justices unanimously struck down EPA’s significant nexus test and forced the agencies to make substantial changes to the 2023 WOTUS rule. If ever there was a time for the EPA to go back and take input from farmers and ranchers on the clarity we need, this was it. Instead, the agency charged forward, ignoring clear and important concerns raised by the Court, 26 states, and farmers and ranchers across the country.

Although the EPA did remove significant nexus from the new WOTUS rule because of the Court decision, they have not removed the ambiguity from the rule.

At every opportunity, Farm Bureau and our grassroots members have been coming to the table and making our voices heard on this issue for years. EPA has simply chosen not to listen. This time, they didn’t even invite feedback or comment on their new rule. Although the EPA did remove significant nexus from the new WOTUS rule because of the Court decision, they have not removed the ambiguity from the rule. Here’s one example: EPA has left the definition of “relatively permanent” water as vague as possible. This gives them plenty of room to regulate areas that look nothing like waterways to an ordinary person—and leaves farmers with no way to know what parts of their land might be “waters” in EPA’s eyes.

For nearly a decade now, farmers and ranchers have been left guessing as regulations bounce back and forth. If the EPA had listened to farmers, they could have finally brought certainty and achieved a clear, permanent WOTUS rule.

While this latest WOTUS rule is not the one we were hoping for, let’s not lose sight of the fact that the courts—including the Supreme Court—have often put the EPA back in check when it comes to its blatant overreach. We have achieved awesome victories together as we advocated for what is right for our farms, ranches and our natural resources. We will keep pressing forward, back to the courts again, until we have the clear rules that farmers deserve.