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-bycase jurisdictional determinations, creating a resourceintensive 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 carveouts 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 Oct. 3, 2022, the Supreme Court heard oral arguments in Sackett v. EPA, a case which 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 that 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 it’s 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.