WOTUS Proposed Revision: Understanding its Impact on Agricultural Lands

Sep 13, 2022

Waters of the United States (WOTUS): it’s a hotly debated topic in the ag world.

Regardless of where you fall on WOTUS regulations, the uncertainty is enough to make anyone’s head spin. Year to year, administration to administration, the rules for what constitutes WOTUS is always changing. 

Thanks to a recent proposed rule by the Biden administration, the definition of WOTUS has been expanded once more—and this time, it includes a lot of waters that have previously not been under its purview. 

If you’re a landowner and wondering whether this proposed rule could impact you, you’re in the right place. Let’s dive into the proposed changes, impact on landowners, and how you should dialogue with your farmer to ensure everyone is prepared. 

What are the proposed changes to WOTUS? 

On December 7, 2021, the U.S. Environmental Protection Agency (EPA) and the Department of the Army proposed a rule that would revise the definition of “waters of the United States.” 

Although the Clean Water Act (CWA) gives the federal government authority to regulate the WOTUS, it fails to provide a definition of its scope. As a result, the EPA and U.S. Army Corps of Engineers have the authority to interpret the law and define what’s included in WOTUS and, thus, subject to federal regulation. 

The interpretation of WOTUS can impact a number of areas, including: 

  • Applicability of water quality standards

  • Total maximum daily loads

  • Dredge and fill permit requirements

  • State and tribal water quality certification programs

  • National Pollutant Discharge Elimination System (NPDES) permit requirements 

For any owners considering development or construction projects on land containing wetlands, ephemeral streams, or similar water features must seek a determination as to whether there are WOTUS features that may impact the project’s design. 

If the Corps determines that the proposed project will disturb WOTUS, the proponent must both obtain a permit, and likely will have to adjust their plans to limit the impact on the waters. Violators may be subject to enforcement action and will be required to restore the area. 

Even though its impact is powerful, the history of the WOTUS definition has been rocky, to say the least. The back-and-forth of agency definitions as political winds change has meant that landowners and contractors are always having to play the “guessing game” as to what the rules will be, particularly close to an election. 

According to the current proposed rule, the definition of WOTUS would be as follows:

  1. Traditional navigable waters, interstate waters, and the territorial seas, and their adjacent wetlands

  2. Most impoundments of ‘waters of the United States’

  3. Tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments that meet either the relatively permanent standard or the significant nexus standard

  4. Wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard

  5. “Other waters” that meet either the relatively permanent standard or the significant nexus standard.

But what is the “significant nexus standard” that’s clear as mud? According to the proposed rule: 

Waters that “either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas (the ‘foundational waters’).” 

As you probably can imagine, this definitional change expands the reach of the EPA regarding their regulatory footprint. However, the specifics of whether any one particular piece of land would fall under WOTUS would be up to interpretation, creating much instability and uncertainty in the market. 

Where does the WOTUS proposed rule currently stand? 

On June 25, 2021, 126 members of Congress signed a letter sent to EPA Administrator Michael Regan, expressing concern that farmers and ranchers are not included in the discussion around the rule, and that it could negatively impact their ability to provide for our nation: 

“Regulation of the Nation’s waters must be done in a manner that responsibly protects the environment without unnecessary and costly expansion of the Federal government in order to prevent unreasonable and burdensome regulations and to protect small businesses, farmers, and families.”

– Excerpt from the congressional letter sent to EPA Administrator Michael Regan

Public comment on the rule closed on February 7, 2022. On May 4, 2022, the EPA and Army Corps of Engineers announced ten roundtables to highly geographic differences and a range of perspectives. 

These roundtables will feature representatives from the following sectors: 

  • Agriculture

  • Conservation groups

  • Developers

  • Drinking water and wastewater managers

  • Environmental organizations

  • Communities with environmental justice concerns

  • Tribal nations

  • State and local governments

According to the EPA, the last of these roundtables was held on June 24, 2022. No final rule has been announced as yet.  

Why landowners should dialogue with farmers regarding WOTUS

The biggest concern about WOTUS regulations isn’t necessarily that there’s too much or too little. It’s that there’s no long-term consistency. Back-and-forth regulatory changes provide uncertainty for farmers, landowners, and small business owners that make long-term planning that much more difficult. 

It’s incumbent upon landowners to stay up-to-date on the most recent rules and regulations, and be prepared whenever a change comes. 

Additionally, it’s important to be in dialogue with your farmers, because they’re the ones who work the land and know it intimately. You should talk to them about WOTUS regulations, and make sure that they’re up to speed on what to look for—so they can keep you in the loop. 

Some of these areas can include: 

  • Whether you have a stream or creek that floods when it rains

  • Whether water accumulation is significant enough to fall under the expanded WOTUS definition

  • How to be proactive and avoid water contamination in crop treatments

  • Specific activities that may be violating EPA regulations

The more you and your farmer communicate, the better you’ll be able to navigate this increasingly uncertain environment—and continue pushing forward with a profitable farming operation.