Farmers and ranchers have been understandably unsettled with the new WOTUS rule that was put in motion just a couple of weeks ago. Today, several groups and stakeholders have filed a complaint against the Environmental Protection Agency’s final “Waters of the U.S.” rule, saying that it violates the U.S. Constitution and exceeds agency authorities under the Commerce Clause.
Instead of providing clarity, plaintiffs write that under the new rule, agencies will exert Clean Waters Act jurisdictions over small and large dry land and water features. The complaint reads, “Under the rule, plaintiffs’ members will constantly be at risk that any sometimes-wet feature on their property will be deemed WOTUS by the Agencies using vague and unpredictable standards — making normal business activities in that area subject to criminal and civil penalties.”
Among other stakeholders filing, plaintiffs included the American Farm Bureau Federation, Matagorda County Farm Bureau, National Cattlemen’s Beef Association, National Corn Growers’ Association, National Pork Producers Council, Public Lands Council, Texas Farm Bureau, and the U.S. Poultry and Egg Association.
“The Biden administration’s WOTUS definition is an attack on farmers and ranchers, and NCBA will be fighting back in court,” said NCBA Chief Counsel Mary-Thomas Hart. “The rule removes longstanding, bipartisan exclusions for small and isolated water features on farms and ranches and adds to the regulatory burden cattle producers are facing under this administration. We look forward to challenging this rule in court and ensuring that cattle producers are treated fairly under the law.”
The Waters of the United States rule has to work for farmers. Stakeholders began voicing their concerns against the 2015 WOTUS Rule because of the broad definition and technical issues that the rule presented.
Since the Clean Waters Act began in the early 1970s, the U.S. Supreme Court has been involved in decisions to attempt to bring clarity to the regulatory jurisdiction of federal agencies under the act. For decades, defining which bodies are subject to federal regulation has been problematic.
“Farmers are stewards of the land and understand the importance of clean water. Unfortunately, this rule lacks common sense and makes our lives more complicated,” said NCBA Policy Vice Chair Gene Copenhaver, a Virginia cattle producer. “My cattle operation in Southwest Virginia has a creek that only carries water after large storms. Under this WOTUS rule, we could be subject to complex federal regulation. I’m proud of NCBA’s work fighting back against this rule and I hope the uncertainty created by WOTUS will soon be a thing of the past.”
Ultimately, the group is calling for a narrow definition of WOTUS. A case related to the CWA, Sackett v. EPA, was presented before the US Supreme Court in October 2022. A ruling is expected in early 2023, which may affect the final WOTUS rule.