WOTUS And the American Farmer: Understanding The Regulatory Reach

By Courtney Briggs

Market Intel, produced by the Farm Bureau economic analysis team, provides market and policy insight and analysis for our farmer and rancher members nationwide, as well as policymakers on Capitol Hill. This Market Intel is a special policy analysis on the recently proposed waters of the United States rule.

Key Takeaways:

• For decades, the definition of “waters of the United States” under the Clean Water Act has been unclear, leading to regulatory uncertainty. Five rule changes since 2015 and conflicting court decisions created a “ping-pong” effect, leaving farmers unsure which water features on their land fall under federal jurisdiction.
• In their ruling in Sackett v. EPA, the Supreme Court eliminated the “significant nexus” test, which broadened the federal government’s jurisdictional reach. The ruling clarified that only relatively permanent waters and wetlands with a continuous surface connection to regulated waters fall under federal jurisdiction. This decision was widely praised for providing the clearest legal standard in decades.
• The Trump administration’s proposed WOTUS rule adopts Sackett’s framework, excluding isolated ponds, disconnected wetlands, and most ditches. It shifts the burden of proof from landowners to the federal government and allows states to regulate beyond federal standards. While the rule aims for clarity, challenges remain — such as proving sustained flow during wet seasons.

For years, farmers and ranchers have worked their land with a close eye on the weather, volatile markets, farm policy and the many regulations that shape everyday business decisions. Among the most influential, and often most confusing of these rules, is the definition of “waters of the United States” (WOTUS). Over the past decade, frequent regulatory changes and court decisions have left many farmers questioning what WOTUS really means for their operations. From the start of this debate, the American Farm Bureau Federation has been the leading voice across industry sectors, consistently advocating for clear, practical regulations that protect farmers while ensuring environmental stewardship.

The Evolving Definition of WOTUS

Under the Clean Water Act (CWA), the term WOTUS serves as the threshold that determines which water bodies fall under federal jurisdiction. Unfortunately, the statute offers little clarity on where that jurisdictional line should be drawn. Over the years, the Environmental Protection Agency and the U.S. Army Corps of Engineers (the agencies) have exploited this ambiguity, expanding their authority far beyond what Congress intended when drafting the law.

From the mid-1980s onward, the agencies operated under a regulatory definition that broadly interpreted WOTUS to include many waters. This expansive interpretation repeatedly ran up against judicial scrutiny. The Supreme Court’s decisions on the limits of the federal government’s regulatory reach, in cases such as Riverside Bayview Homes, Solid Waste Agency of Northern Cook County, and Rapanos, often created more questions than answers.

For example, the Supreme Court’s 4-1-4 split in Rapanos created conflicting standards for federal jurisdiction. Justice Scalia’s plurality introduced the “relatively permanent waters” test, while Justice Kennedy’s concurrence advanced the “significant nexus” test. With no majority opinion, this fractured guidance left regulators and courts without a clear rule, fueling years of litigation and inconsistent interpretations as successive administrations struggled to define WOTUS.