In 1988, Lamb Chop’s Sing-Along, Play-Along unveiled a four-line chorus, and just by those few words alone, you might already be experiencing hives, a rash or eye twitching from the memories spilling back into your head. “The Song That Never Ends” was something kids sang on repeat, because, as the title says, it’s the song that never ends.
Fast forward to 2023, and here we go again. This time it’s not a song, but a set of words that are part of a regulation for which changes never seem to end. Published in the Federal Register by the Biden administration on December 30, 2022, version 2.0 of the Waters of the United States rule – also known as WOTUS – is bringing major headaches to farmers and ranchers nationwide. In spite of a pending court case before the U.S. Supreme Court and the urging of Missouri Farm Bureau, numerous organizations and over 200 members of Congress, the Biden administration’s new rule completely muddied the waters of the Clean Water Act.
For many years, landowners have been caught in the middle of back and forth regulations imposed by the Environmental Protection Agency and the U.S. Army Corps of Engineers as to what is and what isn’t considered a “Water of the United States.” In 2015, the goalposts were shifted in efforts to determine what were “jurisdictional” waters when the Obama administration decided natural land features such as ditches and puddles needed federal oversight. However, during the Trump administration, the 2015 rule was repealed in favor of the Navigable Waters Protection Rule. This gave farmers and ranchers very clear guidelines on what was, and what wasn’t, a waterway that could be regulated.
Can you hear that jingle once again? This is the rule that never ends.
This latest version of WOTUS replaces that clarity with the murkiness of significant nexus tests and other onerous provisions. Ambiguous terms such as “significantly affect,” “relatively permanent,” “similarly situated,” and “in the region” can make farmers, ranchers and anyone else who works the lane liable for civil and even criminal penalties for failing to comply with the regulations. This arbitrary system will require farmers to hire teams of attorneys and consultants to comply with or contest jurisdictional determinations and work through the regulatory permitting process.
Once again, we’re back to where we started. In response, American Farm Bureau and many other national organizations have filed litigation in federal court, requesting an injunction.
Missouri farmers and ranchers want clean water and clear rules. To the contrary, the Biden administration is on a quest for greater uncertainty for those of us who work the land and feed the world. Let’s put a stop to this rule that seems to never end, and let’s put more focus on farmers and ranchers spending time on voluntary, common-sense conservation practices that bring results we all want.