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WOTUS revision still murky, ag groups say

The EPA released a revised Waters of the U.S. (WOTUS) rule on Aug. 29 in response to a Supreme Court decision that declared the previous version unconstitutional. The revision removes language that had greatly expanded Clean Water Act jurisdiction, but many farmers and agricultural groups fear it doesn’t go far enough to protect farmers and ranchers. The new rule went into effect Sept. 8.

Disappointment. Concern. Unease. Frustration. 

Those are among sentiments expressed by agricultural groups after the Environmental Protection Agency (EPA) and Army Corps of Engineers released a revision to the definition of Waters of the United States (WOTUS) on Aug. 29. 

Under the Revised WOTUS Rule, intrastate wetlands are jurisdictional only if they have a “continuous surface connection” to traditional navigable water. The EPA removed the “significant nexus” test, which had been used to determine when waters or wetlands are covered by the Clean Water Act. This test was declared unconstitutional by the U.S. Supreme Court in May after being the subject of intense opposition and litigation for nearly a decade.

In addition, the most recent revision clarifies wetlands are not defined as adjacent or jurisdictional in the Clean Water Act solely because they are “bordering, contiguous or neighboring” or separated from other waters by manmade barriers.

The “significant nexus” standard was the main point of contention in a lawsuit brought by property owners Michael and Chantell Sackett, an Idaho couple who had said they should not be required to obtain expensive federal permits to build on their property that lacked any navigable water. After the Supreme Court sided with the Sacketts and overturned this definition of wetlands, the administration was required to reconsider what is covered under the WOTUS rule.

Although the newly worded rule significantly curtails federal authority to require permits for development or work in certain waters and wetlands, it doesn’t go far enough to protect farmers and ranchers, according to statements by many agricultural organizations.

“With the release of the 2023 WOTUS Rule, the EPA continues to play games with farmers, ranchers and private property owners,” said Garrett Hawkins, Missouri Farm Bureau president.

“While the new language eliminates the onerous ‘significant nexus’ test, the relatively permanent standard remains. Once again, Missouri’s hard-working farmers and ranchers are left in legal jeopardy. Instead of providing more clarity and consistency, the EPA seems committed to the status quo of confusion and government control.”
Similarly, American Farm Bureau President Zippy Duvall said it was a “missed opportunity to write a WOTUS rule that’s fair to farmers and stands the test of time.”

“We’re pleased the vague and confusing ‘significant nexus’ test has been eliminated as the Supreme Court dictated,” Duvall said. “But EPA has ignored other clear concerns about the rule’s failure to respect private property rights and the Clean Water Act. Farmers and ranchers share the goal of protecting the resources they’re entrusted with. They deserve a rule that respects farmers as partners in that effort.”

There was no public comment period on the revised rule, which went into effect Sept. 8, but the EPA and Army Corps of Engineers have provided more information and webinar recordings online at epa.gov/wotus.

READ MORE from the October Today's Farmer Magazine

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