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WOTUS: Woe to us? (Editorial)

by | Jun 18, 2021

The latest volley in the political ping-pong of defining the “Waters of the United States” is putting farmers back on the defensive, and rightfully so. While it purports to govern through the Clean Water Act how waterways are used, the recent push to repeal and replace the Navigable Waters Rule set in 2020 could ultimately restrict the land under and next to the water as well. 
The Clean Water Act prohibits the discharge of pollutants from a point source to navigable waters unless otherwise authorized under the act. Navigable waters are defined in the act as “the waters of the United States, including the territorial seas.”
Thus, “waters of the United States” (WOTUS) is a threshold term establishing the geographic scope of federal jurisdiction under the Clean Water Act. So, defining, and redefining, WOTUS determines what power EPA has over water bodies.
In 2015, the Obama Administration passed a WOTUS rule, which defined the term and was met with several legal challenges from farming and other groups that were concerned the removal of the term “navigable” from the rule would open up regulation to any body of water, from an irrigation ditch to a mud puddle in the farm lane. In 2017, President Donald Trump issued an Executive Order instructing the agencies to “rescind or revise” the 2015 definition and later published the current definition as the 2020 Navigable Waters Protection Rule on April 21, 2020.
Now as of June 9, EPA and the Department of the Army began plans to revise the WOTUS definition as part of an Executive Order from President Joe Biden directing federal agencies to review all existing regulations, orders, guidance documents, policies, and any other similar agency actions of the Trump Administration.
If “navigable” is again removed from the definition, the rule turns more into a land grab than a water pollution regulation, says Don Parrish, senior director of regulatory relations for American Farm Bureau.
“When you start talking about ephemeral features, features that are ditches or even less than ditches, they only have water in them when it rains, all of a sudden you’re really kind of glossing over the fact that you’re regulating land use, as opposed to water,” Parrish said. “If that’s their target, the whole issue of where water ends and land begins, there’s a real question mark on the landscape, and it’s going to create all kinds of issues.”
The next iteration of the rule is sure to be best by legal challenges and take years to wade through, lining the pockets of lawyers as farmers worry about what they will have to give up should it survive the court battles. 
And if history is truly a guide, another presidential election could churn it all up again. 
“I don’t know where this is going, but it is clearly going to be a really detailed and a really significant fight and I need farmers and ranchers to understand that this is not a fight about protecting water quality, because the Navigable Waters Protection rule does that, this is a fight over land use.”
With much uncertainty in farming, from weather to the ebb and flow of world markets, consistency in regulation shouldn’t be too much to ask. Regulations on water should regulate water and same for those that govern land. Yet, here we are again.

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