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Farm Bureau, other ag groups sue over new WOTUS definition

The Environmental Protection Agency has tried again to define what falls under waters of the U.S., or WOTUS, an issue that has been debated for years.

A stream and a barbed-wire fence along a farm field.
The latest waters of the U.S. definition retained some exemptions for agriculture, such as livestock ponds.
Agweek file photo
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WASHINGTON — The American Farm Bureau Federation along with other agriculture and industry groups are suing the EPA over its latest interpretation of the waters of the U.S. definition, calling it unconstitutional.

The EPA announced the revised WOTUS definition in late December and it was published in the Federal Register on Jan. 18. The rule, which defines what waters are covered by the federal Clean Water Act, takes effect March 20.

The lawsuit says the vagueness of the Biden administration rule will mean “time-consuming, costly, and unpredictable case-by-case determinations by landowners and by the Agencies,” referring to the Environmental Protection Agency and U.S. Army Corps of Engineers.

Courtney Briggs, the senior director for congressional relations with Farm Bureau, said the group is hoping for a court injunction before the rule effect.

Courtney Briggs.JPG
Courtney Briggs, senior policy director for the American Farm Bureau Federation
Jeff Beach / Agweek

While the new rule adds back in some exemptions specific to agricultural, such as livestock ponds, that had been left out of the first WOTUS proposal just over a year ago, Briggs says there are “still a lot of questions.”

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For example, EPA includes an exemption for prior converted cropland, if the use changes from cropland to some other use, such as a housing development, that exemption seems to go away.

“They allude to the fact that wetland characteristics need to return and it must meet the definition of WOTUS,” Briggs said. “There’s some confusion about how that’s going to play out.”

In a fact sheet published on its website, EPA lists other exemptions as ditches that are usually, artificial lakes and ponds used for watering livestock or irrigation, as well as gullies created by erosion.

“An exemption is only as good as how clearly it's written. And if I'm reading something and you're reading something, and we're coming to different conclusions, then it's just not it's not clear enough,” Briggs said.

Also on the fact sheet, the EPA says the rule “does not affect the longstanding activity based permitting exemptions provided to the agricultural community by the Clean Water Act.”

Agricultural activities exempt from a discharge permit include:

  • Normal farming and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting or upland soil and water conservation practices.
  • Maintenance of dikes, levees, groins, riprap, and transportation structures.
  • Construction of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches.
  • Construction or maintenance of farm roads, in accordance with best management practices.

Farm and business groups have been lobbying for a clearer definition of what waters are covered by the Clean Water Act for years because a violation could have serious consequences. As the lawsuit notes, negligently discharging into a WOTUS without a permit is punishable by criminal penalties of up to $25,000 per violation per day, and up to one year in prison per violation.
It could also mean having to undo a drainage or building project.

But Briggs said some attempts to clarify the rule only muddied the waters.

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She cited terms like “in the region,” or “similarly situated.” When trying to clarify what “significantly affects,” means she said EPA defines "significantly affects" means “a material influence on the chemical, physical, or biological integrity,” to a body of water.

“I don’t know that that’s provided much clarity,” Briggs said.

More on WOTUS
A new version of the waters of the United States rule concerns farm groups who want clarity that they believe may come through the U.S. Supreme Court.

The EPA also has been criticized for not waiting for a Supreme Court ruling on a key case regarding WOTUS, Sackett vs. the EPA, regarding an improvement to a property near a lake in Idaho. A ruling is expected sometime this year.

“Unfortunately, landowners are going to have to prepare and wrap their heads around this rule when likely the world's going to change at some point this year,” Briggs said.

Other ag groups that signed on to the lawsuit include the National Cattlemen’s Beef Association, National Corn Growers Association, National Pork Producers Council and U.S. Poultry and Egg Association. Other groups signed on to the lawsuit represent construction and mining industries.

Many environmental groups, such as the Sierra Club, favor a broad interpretation of what is covered by the Clean Water Act.

A statement from Sierra Club Clean Water Director Beth Roach after the release of the rule, said, in part:

“The Sierra Club applauds the Biden administration for their commitment to increasing access to clean, safe, and reliable water. Water is one of our most critical public resources, and the health and safety of our communities depend on it.”

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Waters of the U.S. timeline

Reach Jeff Beach at jbeach@agweek.com or call 701-451-5651 (work) or 859-420-1177.
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