Since the end of December, The American Farm Bureau Federation has published opinion pieces and information about the organization’s disappointment with the EPA’s new Waters of the United States Rule.
In a December 30, 2022 press release which can be read at New Water Rule Will Create More Confusion for Farmers (fb.org), the American Farm Bureau Federation’s President Zippy Duvall commented on EPA’s issuance of another Waters of the United States Rule, which will replace the Navigable Waters Protection Rule.
Duvall said, “AFBF is extremely disappointed in the EPA and Army Corps of Engineers’ new Waters of the United States Rule. Farmers and ranchers share the goal of protecting the nation’s waterways, but they deserve rules that don’t require a team of attorneys and consultants to identify ‘navigable waters’ on their land.” He continued, “EPA has doubled down on the old significant nexus test, creating more complicated regulations that will impose a quagmire of regulatory uncertainty on large areas of private farmland miles from the nearest navigable water.”
“Even more puzzling is the administration’s insistence on moving forward with a new rule while the Supreme Court is about to issue a decision on the scope of the Clean Water Act. A ruling in the Sackett case could send WOTUS back to the drawing board, so it makes no sense for EPA to issue a rule that will only cause more disruption and uncertainty.”
Duvall concluded his December 30 release by stating, “We appreciate the agencies’ attempt to provide needed clarifications of the prior converted cropland exclusion and exemptions for irrigation ditches and stock ponds, but the overall rule is still unworkable for America’s farm families. The back and forth over water regulations threaten the progress made to responsibly manage natural resources and will make it more difficult for farmers and ranchers to ensure food security for families at home and abroad.”
Then in a December 30, 2022, the Farm Bureau podcast published at New WOTUS Rule Creates More Confusion for Farmers and Ranchers (fb.org) FB reiterated its position in an interview between the Bureaus’ Chad Smith and AFBF’s Courtney Briggs, senior director of government affairs for the American Farm Bureau Federation, where is she says the new rule that will replace the Navigable Waters Protection Rule put in place during the Trump Administration does not provide the needed clarity and certainty that the regulated community has long called for. Briggs said, “This rule allows the federal government to expand their jurisdictional reach over private property. It is clear that the agencies have doubled down on their use of the troubling significant nexus test, which will require landowners to hire environmental consultants, attorneys and engineers to ensure that they are in compliance.” Briggs continued, “Since this rule relies on case-by-case determinations and ambiguously-defined terms, it is incredibly difficult for a farmer to understand if they have a jurisdictional feature on their property. There are civil and criminal liabilities attached to Clean Water Act compliance, and that is why it’s so incredibly important to have a clear line of jurisdiction.”
Briggs went on to say that the Farm Bureau will be looking to the Supreme Court for guidance. She said, “We will be looking to the Supreme Court for a decision in the Sackett case, which will provide some clarity on the use of the significant nexus test. And the agencies have stated that today’s rule is a durable rule, but it is very likely that they will have to make changes to the rule in response to a decision from the high court next year.”
In a January 4 AFBF “Viewpoints/Zipline” article that can be found at EPA Wrong about New WOTUS Rule (fb.org), President Zippy Duvall began his viewpoint article with, “The EPA’s new Waters of the U.S. rule isn’t just a step in the wrong direction; it goes a mile the wrong way—backward. Instead of making federal regulations more clear, the rule reinstates confusing standards that have already caused decades of uncertainty and litigation.” And he said. “Most importantly, the rule gives the government sweeping authority over private lands and will require teams of lawyers and consultants for common and necessary farming activities. We worked with the EPA’s staff and leaders while they were drafting the rule, hoping our input would make these regulations clear and fair, but I’m deeply disappointed in the outcome.”
He provided a reminder of the role farmers play in protecting the nation’s waterways. He said, “Farmers and ranchers share the goal of protecting our nation’s waterways, but we deserve rules that don’t require hiring experts to tell us if we can farm our land. The Clean Water Act gives the government authority to regulate navigable waters – but the new rule reaches beyond. The EPA doubled down by expanding the significant nexus test, which comes down to a subjective determination of whether the federal government can regulate large areas of farmland miles from the nearest “navigable” water.”
In addition to covering topics like unnecessary federal permitting, and undue burdens the new rule will place on farmers, he explained the fine work farmers do to preserve US water and the contributions farmers have made to protect water quality. “On farms across America, we’ve increased practices that reduce soil erosion and keep nutrients in our fields. We’ve increased the use of cover crops and placed over 140 million acres of land into voluntary conservation programs. We’ve installed buffer strips to filter water coming off our fields and installed protective zones and terraces – all to protect water quality for our families and yours.”
Duvall expressed that America’s farmers deserve better. “EPA held a slew of listening sessions about the rule, but then disregarded what they heard. Now we will use every tool in our toolbox to arrive at a rule with clear and commonsense parameters that allows Americans to manage their land without an army of lawyers. Farmers – and all landowners – deserve better.”
