Uncertainty over latest WOTUS regs
may require Supreme Court to sort out issue, Farm Bureau
American Farm Bureau Federation President Zippy Duvall speaks
Jan. 9 during the organization’s national convention in Atlanta.
“We should not need a team of lawyers and consultants just to be
able to farm our land,”
he said of the Waters of the U.S. regulations.
ATLANTA — As farmers contend with the
latest change in federal Clean Water Act authority, their
best hope for clarity may lie with the U.S. Supreme Court.
Growers should speak out against the
Biden administration’s proposed expansion of federal “waters
of the U.S.” jurisdiction, or WOTUS, according to speakers
at the American Farm Bureau Federation’s annual convention
in Atlanta, Ga.
“We should not need a team of lawyers
and consultants just to be able to farm our land,” said
Zippy Duvall, AFBF’s president, on Jan. 9.
The extent of the federal government’s
ability to regulate farmland under the Clean Water Act has a
long and contentious history.
Fifteen years ago, the U.S. Supreme
Court ruled that wetlands with a “significant nexus” to a
navigable waterway come under the government’s authority,
but that didn’t resolve the controversy.
Several presidential administrations
have interpreted the ruling differently in their
regulations. Most recently, the Biden administration
proposed a change to the Trump administration’s rules, which
had limited federal jurisdiction over wetlands.
Congress could amend the Clean Water
Act to clarify the law’s intentions, but that’s not likely
to happen, said Courtney Briggs, AFBF’s senior director of
“The votes aren’t there,” she said.
However, with the U.S. Supreme Court
skewing more conservative after the confirmation of two
justices nominated during the Trump administration, new case
law on WOTUS is possible.
“That would be our best bet right
now,” Briggs said.
Regulations under the Clean Water Act
are complicated and nuanced, but Briggs explained that the
Biden administration made a distinct change to the rules.
Under the Trump administration’s
interpretation, “ephemeral,” or temporary, waters did not
come under federal authority, while the Biden
administration’s interpretation would expand the
government’s reach, she said.
“They use incredibly vague terms,”
Potentially, the regulation of
ephemeral waters would apply to ditches and other drainage
areas, as well as low spots that collect water on fields,
“That’s what we’re really fighting
over,” she said. “We’re fighting over the ephemerals.”
It’s possible that the Supreme Court
could review a lawsuit that brings more certainty to WOTUS
authority, Briggs said.
One candidate is a longstanding legal
dispute between the federal government and landowners near a
lake in Idaho, she said. “That could really provide some
The Biden administration has
underestimated the regulatory change’s effect on
agriculture, claiming that it won’t negatively affect
businesses, Briggs said.
“I just about fell out of my chair
when I read that,” she said.
Part of the battle over WOTUS will be
convincing lawmakers and others that farmers already go to
great lengths to preserve water quality, she said.
Farmers care about the water used by
their families and communities, contrary to the stigma
created by critics that the agriculture industry wants to
weaken water protections, Briggs said.
“There’s a reputation that farmers
don’t care about preserving the environment,” which also
needs to change, she said.
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