LANSING, Mich. (Michigan News Source) – WOTUS (Waters of the United States) has been a bone of contention between Democrats and Republicans, and farmers and the government, ever since the Obama-Biden administration enacted a rule in 2015 that basically gives the federal government jurisdiction over all bodies of water in the United States, including ponds, ditches and streams.

According to the EPA, the phrase “Waters of the United States” goes back to 1972 amendments to the Clean Water Act which established federal jurisdiction over “navigable waters” which are defined in the act as the “waters of the United States.”

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The EPA says that many Clean Water Act programs apply only to these “waters of the United States” and that the Clean Water Act provides authority for the EPA and the U.S. Department of the Army to define “waters of the United States” in regulations. Without a clear definition in the Clean Water Act itself, this is where the arguments lie.

In the years following 2015, the definitions of “navigable waters” have been defined, re-defined and fought over in court, including a Supreme Court case that was fought in October of 2022 and will be decided sometime early this year. It’s the case of Sackett v EPA that many hope will finally clarify the definition of “navigable waters.”

Back in 2004, the Sacketts purchased some land near a lake in the hopes of building their home on the land. As they began construction in the spring of 2007, the EPA told them that their lot might be subject to regulation under the Clean Water Act because it contained “wetlands” that were “navigable waters” and they should get a permit to move forward. The plot of land has been unoccupied since 2007 while the Sacketts, with the help of Pacific Legal Foundation, battles the EPA over their land.

The American Farm Bureau Federation and The Western Caucus each submitted amicus briefs to the court to describe how the federal government’s overreach is harming efforts to protect clean water and how the agricultural community is bearing the brunt of the government’s expansive and ambiguous regulations.

The Farm Bureau says the new rule is a giant step in the wrong direction and in a statement about the new WOTUS rule they said, “The Clean Water Act gives the government authority to regulate navigable waters – but the new rule reaches beyond. The EPA doubled down by expanding the significant nexus test, which comes down to a subjective determination of whether the federal government can regulate large areas of farmland miles from the nearest ‘navigable’ water.”

They go on to say, “The 2020 Navigable Waters Protection Rule clarified what lands and waters were regulated and what was not. The definitions were easy to understand and allowed farmers, ranchers, and other landowners to determine if they needed a federal permit to improve their land. But this new rule takes us backward. This overreach could subject farming activities like moving dirt, plowing, or building fences to require a federal permit. That means more paperwork, more delays, and more lawyers. Instead of being treated as partners in protecting our nation’s water supply, the federal government wants to dictate what we can and can’t do on our farms.”

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After years of changing definitions, interested parties on both sides are eager to find out how the Supreme Court will decide the Sackett case and if it will result in a sweeping decision that will limit EPA authority or a narrower decision about jurisdiction.

The U.S. Chamber of Commerce put out a statement in December about the revised rule. They said, “If we are to meet our ambitious climate and infrastructure agenda, a consistent, predictable, and durable Waters of the United States (WOTUS) definition is foundational. The Chamber and our members are concerned that the rule will do quite the opposite and create more uncertainty and instability, especially as the Supreme Court moves toward deciding the Sackett case.”

While President Obama had expanded the definition of the “waters of the United States” in an effort to regulate more waters, President Trump undid those definitions while he was in office.

In the meantime, while we wait for the upcoming Supreme Court decision on the Sackett case, President Biden’s EPA and the U.S. Army Corps of Engineers have announced the “Revised Definition of ‘Waters of the United States.’” This rule was published in the Federal Register on December 7, 2022 and will go into affect 60 days from that date, when public comment is closed.

This rule, which was made ahead of the Supreme Court decision, is listed as saying, “This proposed rule would meet the objective of the Clean Water Act and ensure critical protections for the nation’s vital water resources, which support public health, environmental protection, agricultural activity, and economic growth across the United States.” The federal agencies call this a “a clear and reasonable definition of ‘waters of the United States’ and reduces the uncertainty from constantly changing regulatory definitions that has harmed communities and our nation’s waters.”

However, there are many, including farmers and ranchers who do not feel that way.

In Michigan, where about 95% of the farms are family-owned and a multi-generational livelihood for many and Michigan farmers contribute more than $100 billion to the state’s economy, farmers and those who represent them are back to feeling unsure about the rules and what is in store for their future.

Michigan News Source reached out the Michigan Farm Bureau about the new changes to the water rules and Laura Campbell, Michigan Farm Bureau Senior Conservation and Regulatory Relations Specialist said, “Michigan farmers will likely see fewer impacts from the new rule than most of their counterparts across the country because Michigan is one of three states with delegated authority to manage portions of the Clean Water Act. Being that Michigan already regulates most ditches, streams, ponds, and wetlands and assigns state agency staff to perform determinations, farmers here may not see many changes in the regulation of waterways on their farms. But, the way this rule is written is so ambiguous, we have no certainty of that. So, not only could the federal agencies step in to override a state decision on regulations, they could take our state’s program away entirely. Farmers are in a no-win situation trying to figure out what they can and can’t do.”