Grandpa sat in his recliner, legs covered with a blanket, as he watched college football. The latest issue of Show Me Missouri Farm Bureau magazine was open on the end table next to the chair. He was too engaged in the game to say a lot, but what he did say has always stuck with me: “Don’t let EPA regulate our ditches and farm ponds.” This was during the Obama years, and Grandpa was worried… just like the rest of us.
Farmers and ranchers across the country rose up during those years to tell the Environmental Protection Agency and the U.S. Army Corps of Engineers to “ditch the rule” as the agencies proposed the most dramatic expansion of the federal Clean Water Act we had seen since its inception in 1972. Farm Bureau’s analysis showed 99.7% of Missouri land would have fallen under federal jurisdiction. It was a private property rights grab disguised as clean water regulation.
Upon taking office, the Trump administration made Clean Water Act clarity a priority. Farmers, ranchers, landowners, homebuilders, small business owners, county officials, state regulators and many others were consulted. The end product, the Navigable Water Protection Rule (NWPR), accomplished what Congress had refused to do since the inception of the federal law—draw bright lines as to what features are “Waters of the United States” (WOTUS) and thereby fall under EPA and Corps jurisdiction.
The clarity and certainty afforded by the NWPR didn’t last long. The Biden administration is moving swiftly to return to old rules that hinge on case-by-case “significant nexus test” determinations. This approach to CWA regulation was a bureaucratic nightmare years ago and will be again.
The agencies have asserted their proposal has “zero impact,” even though ditches, ephemeral streams, low spots, impoundments and adjacent wetlands will be added to the definition of what is WOTUS. It also rolls back clarifications made under the NWPR for prior converted cropland.
I expect the vast majority of us will need to hire attorneys and consultants to assist with a regulatory process that will take several weeks or even months.
This is only step one for the agencies, however. We don’t yet know what step two looks like, but I don’t expect it to be much better.
The agencies recently held a series of virtual listening sessions to supplement written comments they are receiving. I had the chance to testify and shared that we, as farmers and ranchers, want clean water and clear rules. Clarity, however, shouldn’t come in the form of assuming every ditch or erosional feature on our farms is WOTUS.
Connect the drops, folks. This issue is about more than clean water. It’s about increasing the federal government’s control over private property. The agencies are taking public comments until February 7. Please go to mofb.org/action to make your voice heard. Call on the agencies to keep the NWPR and stop looking for ways to pile on more regulation.