Farmers and ranchers want clean water and clear rules for their families and neighbors. The federal government has no jurisdiction over dry land and ditches, and the law reflects this. Standard farming and ranching practices should not require a federal permit.
Since the Clean Water Act was passed in 1972, landowners have been caught in back-and-forth regulations as to what is and what isn’t considered “Waters of the United States” (WOTUS). Various rules published by the Environmental Protection Agency and the U.S. Army Corps of Engineers (the agencies) as well as several U.S. Supreme Court decisions, have added to the ambiguity.
This has been a very confusing issue for farmers and ranchers for quite a while. In 2015, the agencies issued a WOTUS rule that relied on a “significant nexus test” to determine if waters were connected to navigable streams or rivers, making them fall under the federal regulations. However, the problem was that often ditches, streams, and puddles after a rain storm were deemed WOTUS, and therefore could be regulated by the federal government. When this rule was introduced, farmers, ranchers, and agricultural organizations including MOFB rose up and pushed back.
During the Trump administration, the 2015 WOTUS rule was repealed and the Navigable Water Protection Rule (NWPR) was enacted as a replacement. NWPR gave farmers and ranchers very clear guidelines on what was and wasn’t under federal regulation on their land. This rule was much easier for farmers and ranchers to work with, and gave the federal government less power over private lands. Unfortunately, this clarity didn’t last long after two federal district court decisions halted the NWPR in 2021. Following this ruling, the Agencies went back to interpreting WOTUS in the same way as they did pre-2015.
Despite comments made by MOFB, thousands of others, and over 200 members of Congress asking the agencies to pause their rulemaking in light of a pending U.S. Supreme Court decision on a Clean Water Act case, the agencies pressed forward and published their 2022 WOTUS Final Rule on December 30, 2022.
The new rule doubles down on confusion regarding what waters fall under federal jurisdiction, and will likely require farmers and ranchers to hire environmental consultants, attorneys, and engineers to help them navigate the process. This bureaucratic nightmare is a huge expense for farmers and ranchers.
The rule includes vague terms, which can make farmers liable for criminal and civil penalties if they don’t report, or if consultants don’t find, a “navigable” waterway, which could include streams that only flow after it rains. This complicated rule will pull landowners’ limited resources away from more practical and responsible conservation efforts.
Missouri farmers and ranchers want clear water and clear rules. To the contrary, the Biden Administration clearly wants more power and more uncertainty for those of us who work the land and feed the world.