It was a full virtual house during the Waters of the U.S. listening session for industry and agriculture. The May 1 morning session was part of an ongoing outreach effort by the Environmental Protection Agency and the Army Corps of Engineers in reworking WOTUS to bring it into alignment with the U.S. Supreme Court’s 2023 Sackett decision.
Over 40 speakers gave public comments and dozens more on the waiting list were left when the almost three-hour listening session ended.
The message from speakers — agricultural and industrial alike — was resounding: ‘We need clear, consistent, predictable and dependable definitions on WOTUS that everyday people can understand.’
Clear, consistent, predictable, dependable and understandable
“Agriculture bears the brunt of expansive and ambiguous WOTUS definitions,” said Norm Semanko, an environmental lawyer speaking for Family Farm Alliance. This perspective was echoed in dozens of ways by almost every agricultural voice at the hearing.
Garrett Hawkins, president of the Missouri Farm Bureau, put a fine point on the issue.
“We’ve seen WOTUS definitions, guidance and legal arguments change with each administration,” he said, “and farmers, land owners and small businesses are the ones who suffer the most when we don’t have clear rules.”
“This uncertainty forces us to hire experts just to get guidance on whether we can use common agricultural practices on our farms,” he continued. Other speakers pointed out that getting it wrong is not an option for those in agriculture.
“The costs associated with non-compliance of the Clean Water Act are just simply too high for farmers,” said Jay Bragg, commodity and regulatory activities associate director for the Texas Farm Bureau. Instead, farmers “should be able to make these determinations without consultants or engineers.”
This was a theme repeated by speaker after speaker. Many quoted the direct text of the original Clean Water Act and its focus on “ordinary parlance” related to definitions of a water of the U.S.
“A practical WOTUS definition will allow the average landowner — not an engineer, not an attorney, not a wetland specialist — to walk out on their property, see a water feature, and make, at minimum, a preliminary determination about whether a feature is federally jurisdictional,” said Kim Brackett, vice president of the National Cattlemen’s Beef Association.
Ditches, converted crop land and other categories
The hosts of the listening session called the issue of jurisdictional determinations on ditches one of critical importance. Agricultural commenters agreed and called for wide, if not complete, exemption of agricultural ditches under the WOTUS definition.
“No farm ditches should ever be included as a WOTUS. They should be excluded because they are neither streams, oceans, rivers or lakes,” said Michael Formica, chief legal strategist for the National Pork Producers Council, effectively summarizing the arguments of dozens of commenters.
Those who commented from outside the agricultural industry also stressed the importance of excluding most if not all ditches from jurisdictional waters definitions. Several representatives from building organizations cited concerns related to especially road-side ditches being considered jurisdictional.
Though fewer commenters spoke on the issue of prior converted cropland and its place in WOTUS, those who did made similar arguments appealing to common sense.
“Broadly speaking, land should not be classified as a jurisdictional water,” said Christina Gruenhagen, government relations counsel for the Iowa Farm Bureau. “Prior converted cropland should be considered land and not a jurisdictional water.”
Almost every speaker referenced the need for WOTUS definitions to conform with the U.S. Supreme Court’s 2023 Sackett decision. Most also called for the agencies to significantly reduce the categories of jurisdictional waters.
“The Sackett decision helps us to clarify that there are three — and only three — primary categories of WOTUS waters,” said Andy Rieber, public lands consultant for Humbolt County, Nev. These are the traditional interstate navigable waters, waters with a relatively permanent flow connected to them, and wetlands which are adjacent to either of those two prior categories.
“It is important for the EPA and the Army Corps of engineers to ensure that their definition of WOTUS reflects those three —and only those three — categories.”
Future engagement opportunities on WOTUS
The agency hosts of the May 1 morning listening session for industry and ag told attendees there is another listening session planned for the public. That listening session has not yet been scheduled, however. They urged those who were unable to give testimony to keep watch on the EPA’s WOTUS site.
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