WOTUS rule could get two-year delay

Under current Waters of the United States (WOTUS) rules low spots in farm fields like this, which only occasionally retain water, could be regulated under the rule. 

Water is critical to our families and our farms. It breathes life into our crops and produces forage for animals on our rangelands. It is a priority for farmers and ranchers to ensure the water we rely on is clean because safe, clean water is critical to all life.

Farmers and ranchers are stepping up to partner with their communities to protect our water. Farmers have increased the use of buffer strips to prevent excess fertilizer from reaching waterways. They’re using new technologies to filter water as it drains beneath our fields and are continually working to beef up other clean water protections.

Not only are the EPA and the Army Corps of Engineers repealing the Navigable Waters Protection Rule, but while they work on a new rule, they are reverting to outdated regulations that have caused decades of confusion and litigation. 

Last year, officials at the Environmental Protection Agency (EPA) and Army Corps of Engineers announced they would rewrite the waters of the U.S. (WOTUS) rule, continuing a nearly decade-long back and forth that has left farmers and small business owners scratching their heads. 

In 2015, the WOTUS rule was rewritten, and federal courts blocked its implementation in more than half of the states because it was a clear overreach by the federal government. In 2020, the rule became the Navigable Waters Protection Rule, which provided clearer rules while ensuring clean water.

Republican senators on the Environment and Public Works Committee have introduced legislation to codify the Trump administration’s 2020 Clean Water Act (CWA) Section 401 Certification Rule, shortly after the Biden administration made the decision to return to the pre-2015 definition of waters of the United States (WOTUS).

If you’ve ever had to deal with red tape from our federal government, you know that working through the stack of paperwork and fees that come with applying for federal permits often requires lawyers and consultants. The 2015 rule would have prevented farmers from moving forward on climate-smart farming practices and other advancements that ensure farms remain viable and vibrant.

Unfortunately, warning lights point to the Biden administration heading down a similar path as the 2015 WOTUS rule. While EPA Administrator Michael S. Regan committed to a robust dialogue about the potential effects of the new rule, the agency seems to be moving forward even as they ask stakeholders to set up regional meetings.

The EPA claims the new rule will have no impact on any of America’s small businesses. That simply isn’t true. The proposal that the EPA and Army Corps of Engineers have presented would significantly expand the landmass regulated by the federal government and lead to a costly labyrinth of permitting requirements that small businesses aren’t equipped to navigate.

Although EPA has left me wondering about their sincerity in working with farmers, I’m grateful that the Small Business Administration (SBA) seems to be genuinely listening. We worked with SBA to set up meetings where federal officials heard directly from property owners about the potential impacts of a new rule. 

In early January, the agency heard from farmers and small businesses involved in agriculture. James Henderson, Colorado Farm Bureau Federation vice president, joined the video call from a field he farms. He was standing in a grass waterway. Henderson said he hadn’t seen water flowing through it in years. But, under the proposed rule, EPA could classify it as a regulated ephemeral stream, which means it has flowing water only during and after it rains.

The example Henderson shared was powerful. That’s how we’ll make an impact as the administration works to rewrite the WOTUS rule. We must help policymakers and the public understand the impact of irresponsible regulation, tying the hands of the very people stocking our pantries. And we must remain persistent in our effort to make sure regulations that keep our water clean also respect farmers, ranchers and small business owners.

You can make your voice heard today by visiting fb.org/wotus. When I called on farmers and ranchers to respond to this action alert during our American Farm Bureau Federation (AFBF) convention, over 1,800 farmers and ranchers answered the call in less than 36 hours. I hope you’ll answer the call, too, and tell the EPA why we need clear rules for clean water. We stand ready to engage in an honest and meaningful dialogue with policymakers and all stakeholders. That’s the Farm Bureau way. — Zippy Duvall, AFBF president

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