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Home2024 NAFB ConventionNavigating the Waters of WOTUS with AFBF

Navigating the Waters of WOTUS with AFBF

We continue our coverage at the National Association of Farm Broadcasters Convention with Courtney Briggs, Senior Director of Government Affairs with the American Farm Bureau Federation. We asked Courtney to talk to us about WOTUS.

Q: You are working on implementation guidelines, I believe, right now when it comes to WOTUS? So set this up for us. Where do things stand? What exactly is going on here right now?

CB: Well, let me just back up for a second and talk about the regulation that has come out of the Biden administration because it is important context to understand the implementation challenges that we’re experiencing. And the Biden administration finalized their regulatory definition of WOTUS.

And even with clarifications that I can get into from the Sackett decision from the Supreme Court, they have provided a regulatory definition that fails to define very important terms, these linchpin terms that determine the scope of the federal government’s reach over private property, and that has been very concerning to our members, to landowners across the country, because it’s hard to tell what is in and what is out under this WOTUS definition.

So understanding that confusion, we’ve seen this rule being implemented across the country in the countryside, and there is just considerable confusion about how this is being implemented. What we have found, and we have heard from folks within various Army Corps districts, is that the Army Corps of Engineers has released an implementation guidance document that they have disseminated to core districts informing them of how to implement this rule. The problem is that they are not making this available to the public. So we as the industry sectors, we use the Freedom of Information Act, FOIA, as we refer to it, to force the government to hand over this implementation guidance.

Unfortunately, we got about 1300 pages. Half of it was redacted.

Including the implementation guidance, which they cite as deliberative. So it kind of doesn’t make any sense that the agencies are citing something as deliberative that they’re using on the landscape to implement the WOTUS rule.

So we have serious concerns with the actual text of the Biden administration’s rule, but also with the way that they are implementing it.

Q: Even though we had a very deliberate defining decision with Sackett vs EPA that the administration has kind of left some loopholes open, so to speak, it’s kind of how I’ve interpreted in conversations with other folks. Would you maybe say that’s kind of the case here?

CB: Yeah, because the two terms that are important to understand off of the Sacket decision is what relatively permanent means and what continuous surface connection means.

Again, those are the linchpin terms. So they have, in my opinion, intentionally left those terms undefined so they can have the latitude to regulate however they please. So I think it’s deliberate. I think they’re also using the implementation process to exploit any gray areas that continue to exist. This is really a problem with government transparency.

And for landowners, it’s important to realize the penalties for noncompliance under the Clean Water act are very steep. $64,000 per day for every day of noncompliance or jail time. So civil and criminal penalties attached to it. It’s important for us to know where that bright line of jurisdiction is.

Q: And that’s a great point you bring up, is that for farmers and ranchers, it’s so much uncertainty. And I know we’ve been dealing with this for years and years and years now, as I alluded to in the open – that there’s been times where it’s like, okay, I have a puddle of standing water in one of my fields, and that could be regulated by the federal government.

It seems like, I’ll say this in my own opinion, it just seems like it lacks some common sense is what my perspective is on it, Courtney.

CB: Yeah, and if I can respond to that, 50 years ago, when Congress enacted the Clean Water act, rivers were literally on fire. But fast forward 50 years, rivers are certainly not on fire.

We’re seeing water quality improvements throughout the country, and now we’re talking about regulating a low spot in a farm field. So how did that regulatory creep happen to allow us to go from preventing rivers from being on fire to talking about a low spot in a farm field? It really is mind boggling to think about that.

Q: So, again, for farmers and ranchers, as it stands currently, what do they need to think about? What do they need to do on their operations? I would assume that maybe being over cautious is probably the best case in this current state? What do farmers and ranchers need to keep in mind when it comes to WOTUS right now?

CB: So, the Army Corps and the EPA have really set up a regulatory regime that requires all landowners to seek permission from the Army Corps before they do anything with their land.

So as much as this is about water quality, this is also about land rights and the ability of a landowner to use their land.

I think for right now, under the Biden administration’s rulemaking, that is the safest course of action. Obviously, with a new administration coming in, we will be looking to make changes to the WOTUS definition to make it clearer for landowners.

So landowners aren’t having to wait in line to see if they can use their land, because there certainly is going to be a significant buildup of landowners in line to try to get permits or even just jurisdictional determinations to determine whether they need a permit.

Q: And with that in mind, too, with a new administration coming in, this could all change in three to six months? Have we heard anything already? Or can we look back at the past Trump administration to maybe have some ideas of how the incoming Trump 2.0 administration will handle this issue?

CB: I do anticipate that the Trump administration will work to make changes to the WOTUS definition that the Biden administration created. I think, looking back to Trump 1 – he came in and rescinded the Obama administration’s definition of WOTUS and they provided their interpretation. They called it the Navigable Waters Protection Rule.

So I would very much encourage this administration to take a fresh look at WOTUS and try to provide that clarity and that certainty that landowners in the regulated community so desperately need. But I will caution that the NWPR, the Navigable Waters Protection Rule, it’s almost irrelevant at this point because that rule was created before the Sackett decision.

Now that we have that strong decision and that strong direction from the Supreme Court, we can provide a more informed rule and produce a more informed rule.

Q: Anything else you would add on the WOTUS issue as we close out the segment here? Anything you would want to reiterate to folks or share today?

CB: Look, this is a big deal to our farmers and ranchers.

I also lead a coalition of about 45 trade organizations in Washington, D.C. We created millions of jobs. They’re a very significant portion of our national economy. I like to say if you moved, you’re part of our coalition. So this is not just about farmers. This is about home builders, road builders, the manufacturing, energy sectors.

And, you know, I will say that there’s not enough focus placed on many of the environmentally beneficial projects that are stalled because of WOTUS compliance. I know of many states that are trying to build or maintain wetlands and they’re unable to do that because of the compliance with 404 under the Clean Water Act.

Q: Fascinating. So many layers to this we’ll have to pay attention to, and folks can stay up to date as well at fb.org.

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