Gaesser Tells EPA, Army Corps to Involve Farmers in Developing New WOTUS Regs

May 27, 2022

SfL board member Ray Gaesser reinforced a critical SfL principle when he told a roundtable held this week by EPA and the Army Corps of Engineers that any changes in the legal definition of Waters of the United States (WOTUS) under the federal Clean Water Act must include the input of farmers and others who make their livings from the land.

Gaesser emphasized a key tenet within SfL’s Guiding Principles: The inclusion of opinions from farmers, ranchers, forestland owners MUST be a part of any policy conservation. In this case, input from those who work the land is needed when determining how best to assure the availability of the water resources needed to meet agricultural requirements, as well as meet the needs of others.

It’s a topic made extremely critical with the ongoing severe drought across much of the nation – particularly in the Western United States – that is rendering the availability of water for agriculture a focus of competition with urban areas and recreational users, among others.

The Trump administration enacted a WOTUS rule in 2020, severely limiting waters that fell under the rule. The U.S. Court of Appeals for the Ninth District struck down the rule last September, citing errors in enacting it, as well as the serious environmental harm that it has caused. EPA has since returned to the pre-2015 definition of WOTUS while working on a broader rewrite.

Gaesser, an Iowa corn and soybean grower, spoke at the second of at least 10 roundtables on water quality being hosted over the next month by the federal agencies. He told the roundtable that farmers do not need top-down regulation, but instead, seek to partner with federal and state agencies to improve water quality.

At this week’s roundtable, which was organized by the Regenerative Agriculture Foundation and served to present the views of Midwest stakeholders, Gaesser said a new definition of WOTUS must be flexible enough to account for differences on each farm.

Gaesser said his “one takeaway” from Monday’s discussion is that agriculture is not a closed-loop system and farmers are doing the best they can to feed everybody with the tools they have. He said expanding the definition of Waters of the United States and regulating agriculture like it’s a closed-loop factory, “EPA and the Army Corps may actually make it more difficult for farmers to continue to improve water quality.”

The SfL board member reinforced the need for regulators to heed the diversity in agriculture – not only among farming operations locally, regionally and nationally, but also in growing conditions experienced by each and every operation. He said any effort by a regulatory body to look at the entire nation and design a rule to fit all will not work. He insisted that a balance must be struck between what’s best for the country and meeting the needs expressed through the varied but critically important state and local voices.

Unfortunately, the shifting guidance and rules outlining WOTUS over the years have left farmers bearing the brunt of the regulation. Broad and unclear definitions put out by the agencies have imposed enormous burdens on the more than two million farms and ranches in the US that need regulatory certainty to manage their land in a financially and environmentally sustainable manner. 

Without clarity on the meaning of WOTUS, farms carry the risk of large civil penalties, criminal fines and expensive lawsuits because of activities like fence building or applying necessary fertilizers and pesticides. Gaesser said some farmers may even try to avoid those risks entirely by giving up practical use of significant portions of their farm, especially because the nature of farmland means that it’s covered with low spots in fields, ditches, drains, storage ponds, and ephemeral gullies that may or may not be a water of the United States.

The legal complexity around gaining a WOTUS determination on property has been complicated by shifting regulations over the last few decades, requiring the need hire consultants to navigate the process. The incurrence of high costs for permitting, mitigation, and compliance may force a farmer to abandon a project or take land out of use entirely, Gaesser told the roundtable

“The greatest thing the agencies can do to improve implementation is provide a durable definition of WOTUS that stands the tests of time and makes it very clear what waters are and are not jurisdictional,” the Iowa farmer said. The implementation of WOTUS “should enhance a farmer’s ability to implement conservation, not penalize us for circumstances beyond our control or unfairly remove conservation tools from our toolbox.”

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