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 MaryThomas 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 caseby-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 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

FDA Guidance #263

Continued from page 8 preconditioning programs are many ways to incorporate a veterinarian’s expertise to your operation. Veterinarians are trained to evaluate individual animals within a herd system and provide integrative management plans to prevent diseases or problems from occurring in the future. This would be a good time to sit down with your herd veterinarian and discuss common treatment protocols for your individual herd. Having a protocol acts as a training tool for anyone caring for the cattle, and it also plans ahead for what medications you may need.

When seeking veterinary care, the availability of a veterinarian may be a challenge for some rural areas. Some ideas to find available large animal veterinarians in your area include:

• Speaking with your community or other ranchers

• Getting involved with local or state cattlemen’s associations

• Reaching out to extension agents or universities (including veterinary schools)

• Discussing opportunities with state Veterinary Medical Associations 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.

It is important to note that these products are not being removed from the marketplace. Rather, they are being transitioned from OTC to veterinary oversight to help combat overuse/ misuse. While these affected products will not be abruptly removed this summer, the products may start to become hard to find as local feed or farm supply stores choose not to restock. Do not go out and stock up on these products. Having an excess amount of product will risk having too much product that expires before it can be used. As discussed in the BQA guidelines, expired product is less effective and risks higher treatment failure. Responsible antimicrobial use involves receiving veterinary input and only purchasing products when needed. Some businesses may decide to not stock these products after June 2023 because they are not legally considered a “pharmacy”, which requires the ability to review veterinary authorizations and track veterinary prescriptions. As such, discuss with your veterinarian about how to best access these products.

Each operation is unique, and finding a veterinary practice that supports the needs of your operation is essential. Veterinarians are one branch of your operation’s resource team and can help with short-term and longterm goals towards profit and sustainability. Building a comprehensive management plan for your herd with your veterinarian will help you and your operation adapt to unforeseen obstacles, improving animal welfare, antimicrobial stewardship, and cattle care factors in the future.

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 this 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.