New WOTUS Rule Revives Decades of Uncertainty

As many families were relaxing between Christmas and New Year’s, the Environmental Protection Agency (EPA) was hurriedly finalizing a new “Waters of the United States” (WOTUS) rule and adding to the regulatory uncertainty that has plagued cattle producers for decades.

“The timing of this rule could not be worse,” said NCBA Chief Counsel Mary-Thomas Hart. “It’s bad enough that the EPA unveiled this rule when many farming and ranching families are enjoying the holidays, but the Supreme Court is currently considering Sackett v. EPA, which will likely impact the WOTUS definition. The EPA’s final rule seeks to directly preempt ongoing Supreme Court litigation, leaving farmers and ranchers with more questions than answers.”

The release of this new WOTUS rule in the midst of a Supreme Court case has only added to the uncertainty cattle producers have faced the last 50 years. On average, the federal government has changed the definition of WOTUS every 3.8 years since the Clean Water Act passed in 1972, leading to decades of confusion.

“The Sackett case is an opportunity to finally solidify the EPA’s proper jurisdiction,” Hart said. “NCBA has long fought for a consistent WOTUS definition that offers clarity for producers.”

The Biden Administration’s WOTUS definition is detrimental for cattle producers and landowners across the country. In an attempt to strike a balance between the 2015 Obama definition and 2020 Navigable Waters Protection Rule, EPA only created new confusion for regulated stakeholders. Features like ephemeral tributaries that only carry water after a precipitation event or isolated features that do not contribute to downstream water quality are neither categorically jurisdictional or exempt. Instead, these features are subject to case by case jurisdictional determinations, creating a resource intensive and costly new burden for cattle producers.

While the new rule is highly concerning, there is one bright spot. EPA’s proposed rule, first issued in December 2021, included no jurisdictional exclusions for agricultural features — even following the use of these valuable carve outs in both the Obama and Trump era rules.

“NCBA worked quickly to tell the Biden administration how harmful the loss of these agricultural exclusions would be,” Hart said. “We also encouraged our members to speak up , and their comments to the EPA were crucial for retaining the exemption. Our producers’ voices were heard loud and clear.”

The final definition excludes many important agricultural features, including prior converted cropland, certain ditches, and stock ponds. The final rule also contains a definition for prior converted cropland, attempting to align USDA and EPA standards and reduce confusion.

However, without a clear definition, cattle producers are left with the most concerning aspect of this new WOTUS rule: case by case determinations. This approach — a failure to tell regulated stakeholder what is “in” and “out” — requires cattle producers to ask the government if they have a regulated water feature on their property instead of providing a definition that allows landowners to make the determination on their own. Without clarity, features that are dry for most of the year or with no impact on downstream water quality might suddenly have the same federal protection and permitting requirements as a large lake, river, or ocean. In the past, such ambiguity has led to landowners conducting activity on their private property, such as constructing a dam to establish a stock pond, only to be surprised by an enforcement action by the U.S. Army Corps of Engineers and EPA. These “gotcha” violations can lead to years in federal court and thousands of dollars in unnecessary expense.

NCBA’s concerns about the final rule extend beyond its substantive impacts. EPA chose to issue this final rule while the Supreme Court is also actively considering the definition of WOTUS. On October 3, 2022, the Supreme Court heard oral arguments in Sackett v. EPA, a case that concerns a couple in Idaho who purchased lakeside property to build their dream home. While the facts of the case are not farming related, this case will have a significant impact on the future definition of WOTUS. This is the fourth time the Supreme Court has considered the definition of WOTUS — and the first time for six of the nine sitting Justices. A decision is expected in Spring 2023. NCBA requested that EPA pause its rulemaking until the Supreme Court issued its Sackett opinion. The Agency’s impatience will likely lead to more rulemakings on this important issue in the next two years.

Throughout last year, NCBA encouraged members to send letters to the EPA calling for a clear WOTUS definition and explaining how WOTUS impacts farms and ranches outside of Washington, D.C. More than 1,700 cattle producers from 44 states submitted feedback to the agency. NCBA also mobilized cattle producers to share their stories at EPA and Army Corps listening sessions and participate in agency roundtables. These events provided policymakers with the cattle industry’s perspective on the new WOTUS rules.

Case IH Celebrates 100 Years of Farmall, The One For All. Tractor introduced in 1923 celebrates its 100 th anniversary. Case IH kicked off celebrations honoring the 100 year anniversary of the Farmall tractor on February 1. The iconic Farmall model was introduced in 1923 as the all purpose tractor designed to revolutionize the agriculture industry. Over the last century, Farmall has evolved to meet farmers’ needs across the globe with each milestone, making it “The One For All.”

“In 1923, we set out to design a tractor that could replace horses, and today, our Farmall still serves as the workhorse on farms across the globe,” said Scott Harris, Case IH global brand president. “Generation after generation, Farmall has been a symbol of modern farming, and we’re excited to bring these stories to life over the course of 2023.”

During the year long celebration, Case IH will be giving away a brand new Farmall 75C tractor to one lucky winner who shares their passion and story about how Farmall has helped shape their farm over the years or how it’s become part of the family. The contest launched during National Cattlemen’s Beef Association Trade Show on February 1, and the winner will be announced at the National FFA Convention on November 1.

Major milestones for Farmall include:

• 1923 - International Harvester engineer Bert R. Benjamin designs the first Farmall prototype

• 1931 - The F series is presented for farmers with more acreage

• 1939 - Second generation Farmall designed by Raymond Loewy

• 1941 - Farmall introduces the world’s first diesel row crop tractor

• 1947 - The one millionth Farmall rolls off the line

• 1958 - The most popular tractor in the U.S., the Farmall 560, is introduced

• 1965 - Farmall is the first 2WD row crop tractor to exceed 100 horsepower

• 1974 - Case IH sells its five millionth Farmall – the first tractor to ever reach that number

• 2003 - Case IH continues to expand the lineup of products spanning from 31105 horsepower

The legacy of Farmall continues today with more than 30 models to choose from, and this iconic tractor series will continue to evolve alongside the customers who made this milestone possible.

“Even before this anniversary, the team at Case IH was always reminded of the passion for Farmall from customers and dealers. Iconic only begins to describe it,” remarked Kurt Coffey, Case IH vice president of North America. “We are proud to have 100 years of Farmall as our legacy. It’s a tractor that’s been revolutionary to farms of all sizes across the globe. Well worn, well loved: this is a tractor like no other.”

For more information on the year long celebration of the 100th anniversary of Farmall and the contest details of a Farmall tractor, visit Farmall100.com

About Case IH. Case IH is a global leader in agricultural equipment, committed to collaborating with its customers to develop the most powerful, productive, and reliable equipment — designed to meet today’s agricultural challenges. With headquarters in the United States, Case IH has a network of dealers and distributors that operates in over 160 countries. Case IH provides agricultural equipment systems, flexible financial service offerings, and parts and service support for professional farmers and commercial operators through a dedicated network of professional dealers and distributors. Productivity enhancing products include tractors, combines and harvesters, hay and forage equipment, tillage tools, planting and seeding systems, sprayers and applicators, and site specific farming tools.