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AFBF joins infrastructure, housing, ag groups to file WOTUS suit

The American Farm Bureau Federation (AFBF) and 17 other organizations are challenging the new Waters of the U.S. Rule in a lawsuit. AFBF Deputy General Counsel Travis Cushman said the new WOTUS rule once again gives the federal government sweeping authority over private lands.

“The EPA just came out with another rule that doubles down on the significant nexus test, which is this unworkable test for jurisdiction of when the federal government regulates farms and ranches. So, we filed our lawsuit to stop it,” Cushman said.

The new rule greatly expands the federal government’s regulatory reach over private land use because it allows it to regulate ditches, ephemeral drainages, and low spots on farmlands and pastures. This could impact everyday activities such as plowing, planting and fence-building in or near these areas. This rulemaking brings us further away from the clarity and predictability achieved by the Navigable Waters Protection Rule (NWPR). This is important for farmers and ranchers because the penalties for non-compliance are significant. A simple misjudgment by a farmer in determining whether a low spot is or isn’t subject to the regulation can trigger substantial civil fines as well as criminal penalties.

“We think that a farmer and rancher should not have to hire a team of lawyers and consultants to figure out what they can and cannot farm on their land. This rule doubles down on that, and we simply want to respect the limits of the Clean Water Act and what a farmer can and can’t do on their land,” he said.

The new rule comes as AFBF and others await a pending decision from the Supreme Court in the case of Sackett v. EPA, which is related to a former version of the rule.

“It highlights how insane it is that EPA is going through with this rulemaking now. That decision, which could come out at any time, will likely delineate the scope of what the Clean Water Act is. For the EPA to try to jump the gun here and do something before the Supreme Court says what the proper limit is, makes no sense. And it creates
more confusion in an area that has already been confusing for the past 10 to 20 years,” Cushman said.

Get Your Clean Water Facts

  • The Safe Drinking Water Act is the primary law that protects all public drinking water supplies across the United States. Changes to Clean Water Act regulations do not reduce Safe Drinking Water Act protections.
  • The Clean Water Act regulates our nation’s “navigable waters”—also called “waters of the United States.” It imposes huge fines or even criminal liability for putting almost anything into those waters without a federal permit.
  • The Clean Water Act recognizes that some surface waters should be regulated by the federal government, while some should be protected under state law. The NWPR clarified which waters are subject to which type of protection. In particular, it preserved state authority over many land features that only carry water when it rains.

Farm Bureau is a member of the Waters Advocacy Coalition.

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