WOTUS: The Rule that Keeps Coming Back

You may wonder as to how we could be talking about “waters of the United States” (WOTUS) again. The new administration under President Trump and EPA Administrator Lee Zeldin are trying to clear up what has been a major headache for landowners for years.

In an attempt to better define what should be a protected body of water and not be a hindrance to farmers and landowners, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers are seeking input from the public on revising the definition of “waters of the United States” (WOTUS) under the Clean Water Act to come in line with the 2023 SCOTUS decision in Sackett v. EPA.

In March, EPA and Army Corps announced WOTUS is under regulatory review of the federal jurisdiction over water features in the country. For decades, we have seen numerous WOTUS definitions, countless agency guidance documents being offered and then rescinded, and confusing litigation that has provided more questions than answers. As a result, we lack clarity on what waters fall under federal jurisdiction, which has created uncertainty about whether drains, ditches, stock ponds, and other low spots on farmlands and pastures are considered a WOTUS.

Under previous administrations, permits would be required for the standard use of fertilizer and crop protection tools, and even accidental discharges would be deemed unlawful. This uncertainty forces farmers and ranchers to hire experts to interpret the rule just for guidance on whether they can use common agricultural practices on their farms. Violations (negligent or knowing) of the Clean Water Act could be met with penalties of up to $50,000 per day. These types of penalties could easily bankrupt farming and ranching operations.

Year-after-year we have been living under a “guilty until proven innocent” regime because weak definitions of WOTUS have been interpreted by previous administrations too broadly. That is why Missouri farmers need bright jurisdictional lines. Missouri Farm Bureau supports EPA’s and Army Corps’ plan to enact a simplified, durable definition of WOTUS that creates certainty and predictability on how to operate their farms without fear of government overreach.

MOFB advocates that a simplified rule would define WOTUS as follows:

1. Traditional interstate navigable waters (such as interstate rivers and lakes) and territorial seas;
2. Relatively permanent, standing or continuously flowing rivers, streams, lakes and ponds connected to traditional interstate navigable waters, and;
3. Wetlands with a continuous surface connection to Nos. 1 & 2.

Clear definitions for “relatively permanent” and “continuous surface connection” are essential to a durable rule.  As such, ephemeral and intermittent water features must be excluded—because they are not, by law or logic, WOTUS. Likewise, jurisdictional ditches should be very narrowly defined. And unnecessary categories, like impoundments or isolated intrastate lakes, should be removed unless they meet strict criteria. Finally, exclusions to the rule must be strengthened and clarified. That includes protections for prior converted cropland, stormwater control features, waste treatment systems, and common agricultural ponds—without being limited by whether they were built on dry land.