The Environmental Protection Agency announced last week that it will revisit its Waters-of-the-United-States rule. Farmers and agriculture groups were immediately alarmed by the decision. So what does that mean and why is there concern? I’ll attempt to explain in the most straightforward way possible. (But please bear in mind this is a very technical issue. If you want to read a more legal explanation, click here.)
What We’re Talking About
You may be wondering, “what is a WOTUS?” Congress passed the Clean Water Act back in 1972. The CWA authorizes the EPA to regulate water pollution.
The federal government doesn’t have jurisdiction (read: authority) to regulate all water within the U.S. though. So Congress had to write the legislation in a way that it fit neatly into one of its constitutional powers. It used the interstate commerce clause as its authority to regulate “waters of the United States.” The CWA defined those waters as “navigable waters.”
If you’re not sure what that means, welcome to the club. While it’s clear that the Mississippi River is a “navigable” waterway, it isn’t clear how far we take that definition. Does a smaller river count? Does a stream count? Does your farm’s drainage ditch count? Federal courts have grappled with that issue almost as long as the CWA has been around.
The 2015 WOTUS Rule
In 2015, the EPA and US Army Corp. of Engineers finalized a rule that greatly expanded the CWA’s traditional reach. It stated that not only were navigable waters within EPA’s jurisdiction, so were waters with a “significant nexus” to navigable waters.
Why does that matter? It matters because the EPA usually requires a permit if you’re discharging something that could end up in a navigable water. You know, like fertilizer. If a farmer applies fertilizer to a field with a drainage ditch, and that drainage ditch finds its way to a tributary, and that tributary runs into a stream that ultimately dumps into the Mississippi River, did the drainage ditch have a significant nexus with a navigable waterway? If it did, then you maybe need a permit. And if you don’t have one, you can be hit with significant fines or even criminal charges.
To say the least, it was a confusing rule that didn’t offer much clarity. EPA’s response to farmers’ concerns didn’t help either. The Obama administration even went so far as to say that the only people concerned about expanding the rule were those polluting our waters. Really?? That’s not helpful or reassuring when you’re trying to wok with industry stakeholders or answer concerns.
After the rule was finalized, things got really complicated. The WOTUS rule was immediately embroiled in litigation. I’ll spare you the grimy details, but courts were making contradictory rulings across the country. So while the WOTUS rule was effective in some places, it wasn’t effective in all places. Ultimately, it went to the Supreme Court of the United States, which promptly sent it back down to lower courts to decide.
Navigable Waters Protection Rule
President Trump ditched the 2015 WOTUS rule in an executive order shortly after taking office. In 2017, the administration replaced the 2015 WOTUS rule with the Navigable Waters Protection Rule. American Farm Bureau celebrated the new water rule as providing more clarity. In particular, things like drainage ditches and mud puddles were clearly outside of EPA’s jurisdiction.
But Here We Are
As mentioned at the start, the Biden administration has decided to reopen this issue. EPA’s Michael Regan says the Navigable Waters Protection rule allows too much environmental degradation. He stated in a press release:
We are committed to establishing a durable definition of ‘waters of the United States’ based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders, so we can better protect our nation’s waters, foster economic growth, and support thriving communities.
For his part, Regan says this time will be different. He’s prioritized drafting a rule “reflecting the experience of and input received from landowners, [and] the agricultural community that fuels and feeds the world.”
Do we believe him? I’m honestly not sure. The Obama administration’s handling of this issue was a disaster, to say the least. The messaging and application alienated rural Americans. And the WOTUS rule came out of the courts battered, bruised, and missing some limbs. I would hope Regan wants to avoid the same ending.
As you imagine, farmers are experiencing whiplash. Not to mention uncertainty. And I think they have a justified reason to be nervous about this process. We weren’t treated well last time around. So if we do this again, we need to see transparency, clarity, and compromise.