Environmental Protection Agency

Trump Admin to Roll Out Major Fertilizer Plan This Week, Accelerate U.S. Production Push

Mon, 27 Apr 2026 16:36:30 GMT

Agriculture Secretary Brooke Rollins says the Trump administration will unveil a sweeping set of fertilizer initiatives this week, warning that surging input costs are putting intense pressure on American farmers. Speaking at a Missouri farm on Friday, Rollins told those in attendance that fertilizer has become an issue of national security, which is why she says this week’s announcement will be broader than just USDA, also including EPA, Department of Energy, Department of Commerce and Department of the Interior.

While at GR Farms in Higginsville, Mo., on Friday to roll out an announcement on the Supplemental Disaster Relief Program (SDRP) top-up payments, Rollins described the Trump administration’s upcoming announcement on fertilizer as a large-scale investment initiative. She says while she hoped to roll out the plan while in Missouri, the administration is still finalizing the size of the funding package.

Rollins says the plan will address both immediate actions to stabilize fertilizer prices and a longer-term roadmap aimed at ensuring affordable, domestically produced supply for U.S. farmers.

Washington analyst Jim Wiesemeyer says the plan will likely need to include a mix of financial and policy tools, such as grants, tax incentives, loan guarantees outside of existing USDA programs and greater consistency in U.S. trade policy, while noting imports will still play a role, particularly for key nutrients like potash sourced from Canada.

Short-Term Fertilizer Price Pain

During her comments Friday, Rollins highlighted how quickly fertilizer prices have increased since the conflict started in Iran, outlining the additional strain it is placing on producers.

“We know that urea prices have gone up 50% over the last month. Ammonia is up 30% or more,” she said, adding that “our farmers are feeling that pinch.”

Rollins also told the crowd fertilizer has been a longer-term challenge, even before the situation in Iran caused the latest price spike.

“To be clear, this has been a problem for years. The actual numbers are lower, believe it or not, than they were even in 2022,” she says. “But nevertheless, that jump in prices overnight, we have to address.”

Framing the issue as more than just an economic challenge and one that is a matter of national security after decades of offshoring fertilizer production, Rollins says the administration views the issue as part of a broader structural problem within the fertilizer industry.

“The loss of competition in the fertilizer industry has obviously led to higher fertilizer costs over time,” she says. “When combined with what’s happening overseas with the current geopolitical issues facing our world, certainly we have come to a crossroads that requires immediate action. This is indeed a matter of national security, and we are working to tackle it head on.”

Focus on Domestic Fertilizer Production

While Rollins didn’t give details, she hinted the centerpiece of this week’s announcement will be a major push to reshore fertilizer production, backed by federal investment to accomplish that. Working with Commerce Secretary Howard Lutnick, she says the administration is preparing to direct significant funding toward building new fertilizer plants across the country, while also supporting existing projects.

“I have asked Howard to do, and his team to do, and what we’re doing in partnership is to identify a significant number ... that we can deploy into building out fertilizer plants in America,” she says.

Rollins emphasizes cutting regulatory delays will be critical to making that plan work. She says projects are already being identified nationwide, but permitting delays remain a major obstacle — with the goal of getting that process down to months versus the current years it takes.

“We’ve already begun to identify all over the country. Some are under production. How do we move them along more quickly? Some are in the permitting bureaucracy, which sometimes takes years to get through permitting,” she says. “Our goal is to, instead of years, to get to permitting in a matter of weeks, or perhaps months, so that even in one year, two years and three years, we will have facilities up and running that we will never have had that opportunity or option before.”

United States’ Energy Advantage for Nitrogen Fertilizer

Rollins also points to domestic energy resources as a key factor in expanding fertilizer output, particularly for nitrogen production.

“We became, in a matter of just a short period of time, a net exporter of LNG versus importer, meaning we were producing our own energy in America, so much so that we no longer had to rely on other countries,” she says. “The reason that is important is, as our farmers are facing these exponential nitrogen fertilizer costs, we now have the resources in America. We just have to build the facilities, the manufacturing facilities, to turn that LNG into nitrogen. So this is going to happen quicker than you would normally expect, I think because of the pieces of the puzzle that have already been put into place.”

In the meantime, Rollins says the administration is continuing short-term efforts to improve supply availability and reduce costs.

While the longer-term strategy ramps up, she says the administration is continuing short-term interventions to ease pressure on farmers. These include:

Extending a waiver of the Jones Act
Opening new import channels
Working and meeting with industry/fertilizer companies

Highlighting cooperation with domestic producers, she pointed to CF Industries as an example.

“They have said, in order to protect our farmers, we are going to stop maintenance. We are going look at holding our prices steady,” she says.

She also points to ongoing coordination with the Department of Justice.

“Last year, we signed a joint agreement, USDA did, with the Department of Justice, ensuring that farmers have access to competitive and affordable inputs,” she says. “Looking into the activities of our fertilizer companies and what has happened over the last few years, but with a new eye on potential price gouging right now.”

Long-Term Goal: Reduce Foreign Dependence

Looking longer term, Rollins says the administration is focused on reversing decades of reliance on foreign suppliers.

“America has offshored for far too long, far too much of our fertilizer production, leaving us dangerously reliant on Russia and China,” she says. “Changing that long-standing industry that is reliant on global markets won’t happen overnight,” she says. “But working with our farmers and across industry and government, we will find ways to make fertilizer that we can do here in America and make sure it is a price that our great farmers can afford.”

At the same time, the administration is increasing scrutiny of fertilizer markets. Rollins noted ongoing coordination with the Department of Justice, saying officials are taking “a new eye on potential price gouging right now.”

Ultimately, she framed this week’s announcement as the beginning of a broader shift away from foreign dependence.

Rollins says additional details, including funding levels and project specifics, will be included in next week’s announcement.

“We’re at a crossroads that requires immediate action,” she says.

Watch Rollins’ full press conference here:

Trump Signals More DEF Rollbacks, Pushes Manufacturers to Lower Equipment Costs

Fri, 27 Mar 2026 20:12:43 GMT

In front of a gathering of farmers, ranchers and growers at the White House, President Trump and EPA announced new guidance that will remove the DEF sensor requirements, which the Small Business Administration (SBA) estimates will save farmers $4.4 billion a year and translate into $13.79 billion for Americans. Administrator Lee Zeldin says the move impacts farmers, truckers, motor coach operators and other diesel equipment operators.

“I have heard from truck drivers, farmers and many others complaining about DEF and pleading for a fix in all 50 states I visited during my first year as EPA administrator,” Zeldin says. “Americans are justified in being fed up with failing DEF system issues. EPA understands this is a massive issue and has been doing everything in our statutory power to address this. Today, we take another step in furthering our work by removing DEF sensors. Farmers and truckers should not be losing billions of dollars because of repair costs or days lost on the job.”

Every farmer now has the Right to Repair their own equipment thanks to President Trump. It’s crazy that our talented farmers were being prevented from doing this previously. This announcement is about common sense. Farmers will be able to spend more time in the field and less… pic.twitter.com/4hROUN45EU
— Lee Zeldin (@epaleezeldin) March 27, 2026

New Guidelines Focus on DEF Sensors

EPA says that sudden speed losses and shutdowns caused by DEF system failures compromise safety and productivity. It calls the issue unacceptable and problematic. In a release, EPA says it plans to continue to pursue all legal avenues to address Americans’ complaints. On Feb. 3, 2026, EPA demanded critical data on DEF system failures from the manufacturers that account for over 80% of all products used in DEF systems. This information will arm EPA with what it needs to permanently address DEF system failures. Thus far, the agency has received data from 11 of the 14 manufacturers, and in less than a month, EPA has turned around preliminary findings to issue today’s guidance, demonstrating Administrator Zeldin’s commitment to fixing this issue.

“Today, by eliminating DEF mandates, the Trump Administration is taking yet another step to free up hardworking Americans to focus on the vital work of feeding, clothing, building, and fueling our nation,” says SBA Administrator Kelly Loeffler. “I applaud Administrator Zeldin for his leadership on this issue, and I look forward to our continued collaboration to cut red tape for small businesses across the U.S. food supply chain.”

Several ag equipment manufacturers were highlighted during the event at the White House, including John Deere. The company weighed in EPA’s latest announcement about DEF.

“John Deere applauds the EPA’s leadership to provide as much flexibility through agency guidance as possible to limit the frequency of false DEF-quality inducements,” says Kyle Gilley, vice president for global government affairs at John Deere. “Today’s announcement builds upon EPA guidance from February 2026, requested by John Deere, to provide farmers additional tools to complete emissions-related repairs. These announcements are a win for farmers and their ability to keep modern equipment operating in the field.”

EPA says the preliminary review of the warranty data suggests that DEF sensor failures are a significant source of warranty claims and DEF-related inducements. The agency’s new guidance makes clear that under existing regulations, manufacturers can stop inaccurate DEF system failures by removing traditional emission sensors, known as Urea Quality Sensors, and switching to nitrous oxide (NOx) sensors.

EPA also affirms that approved NOx sensor-based software updates can be installed on existing engines without being treated as illegal tampering under the Clean Air Act. This is in line with EPA’s February 2026 Right to Repair clarification guidance , which removed a major barrier keeping farmers from fixing their faulty DEF systems in the field. EPA anticipates the switch will greatly curb errors that traditional sensor technologies have been prone to and reduce the issues Americans face with inaccurate DEF failures.

For more information, see EPA’s Diesel Exhaust Fluid .

Trump Calls on Manufacturers to Lower Equipment Prices If DEF Rolled Back

During Friday’s event, Trump also spoke about the rising complexity and cost of modern farm equipment.

“When you buy a tractor today, you spend 50 percent of your time fixing the environmental — I say environmental impact statement garbage that’s on the tractor,” he says.

He adds that equipment often includes computerized systems that can shut down tractors unnecessarily, increasing repair costs.

“I said to the head of John Deere, ‘Is this a good thing or a bad thing?’ He said, sir, you have no idea how bad it is. It’s made our tractors so complicated. … We want to go back to the old ways, sir. And I said, I agree with you 100 percent.”

During remarks at the event at the White House today, President Trump said EPA is working to further roll back DEF-related requirements and pushed manufacturers to cut equipment costs:

“You’re going to lower the cost of a tractor… they’re going to be able to very shortly…
— Tyne Morgan (@Tyne_Ag) March 27, 2026

The president says the administration is looking into further rolling back DEF requirements, but as he does, he is also urging manufacturers to reduce equipment prices for farmers if the added environmental regulation costs are no longer there.

“Lee (Zeldin), I think we can say, I know you’re in the process of cutting out massive amounts of nonsense that are mandated to be put on your tractors, that all of your trucks that cost your fortune…and I know that they’re going to do this. And I asked one thing, you got to promise me one thing. You’re not going to take any profits. You’re going lower the cost of a tractor. I want you to lower the costs. And if they don’t lower the course, you’ll let me know. And I’ll have to do a big number of those companies. Okay? They’re going to be able to, very shortly, produce a bigger, better tractor and substantially less money. It’s going to be better. It’s gonna be a better tractor at substantially less,” Trump says.

He adds that future tractors will be simpler, more reliable and less expensive.

“I want John Deere and Case and all of the great companies … to give it to you in the form of lower tractor and equipment costs. And I think it’s going to have a huge impact,” he says.

President Trump then directed EPA Administrator Zeldin to explore ways to require, or mandate, manufacturers to lower the cost of farm equipment.

EPA’s guidance issued on Friday is part of a broader effort to address complaints from farmers, truckers and other diesel equipment operators about DEF system failures that cause equipment shutdowns, but Trump says more action on DEF is currently underway.

More DEF Relief? EPA Takes New Action for Farmers and Truckers

Tue, 03 Feb 2026 16:14:42 GMT

On the heels of clarifying farmers’ right to repair their own equipment, EPA is escalating pressure on diesel engine manufacturers over ongoing Diesel Exhaust Fluid (DEF) system failures the administration claims continue to sideline farm machinery and trucks.

On Tuesday, EPA Administrator Lee Zeldin announced the agency is demanding detailed failure data from major diesel engine manufacturers as it considers additional rules aimed at reducing DEF-related shutdowns and derates that have plagued farmers, truckers and equipment operators for years.

The move builds directly on Monday’s EPA right-to-repair guidance announcement that clarified the Clean Air Act does not prohibit farmers from fixing their own non-road diesel equipment, which includes making temporary emissions overrides when necessary to complete repairs.

“As I traveled to all 50 states during my first year as EPA administrator, I heard from truck drivers, farmers and many others rightly complaining about DEF and pleading for a fix,” Zeldin said in a statement on Tuesday. “EPA understands this is a massive issue, which is why we have already established commonsense guidance for manufacturers to update DEF systems.

“Today, we are furthering that work and demanding detailed data to hold manufacturers accountable for the continued system failures,” he added.

While neither announcement fully rolls back DEF requirements on tractors, a step many farmers and truckers continue to push for, both signal movement in that direction.

With today’s news in the mix, here’s what farmers and truckers need to know:

1. Increased Operational Up-Time.

The most immediate benefit is the reduction of “forced downtime.” Under the clarified guidance announced on Feb. 2, farmers can now perform temporary emissions overrides to complete essential work, such as planting or harvesting, even if a DEF failure occurs. The extension of warning periods — specifically the 36-hour window for non-road equipment before a derate kicks in — provides a buffer to finish a job before seeking repairs.

2. Legal Empowerment for Repairs.

EPA has explicitly stated the Clean Air Act cannot be used by manufacturers as a shield to prevent farmers from fixing your own equipment. This clarification removes a major legal hurdle in the right-to-repair movement, potentially lowering repair costs by allowing farmers and independent mechanics to access the tools and software needed to address DEF-related faults.

3. Manufacturer Accountability.

Under Section 208(a) of the Clean Air Act, EPA is demanding warranty and failure data for Model Year 2016, 2019 and 2023 engines from 14 major on-road and non-road diesel manufacturers (covering 80% of the market). That shifts the burden of DEF reliability from the end-user to the manufacturer. EPA says the information will help determine whether persistent DEF problems are tied to specific product generations, system designs or materials, and will inform further regulatory steps in 2026. Manufacturers have 30 days to comply or face potential enforcement actions.

4. Impact on Machinery Values.

Auction data suggests farmers are already voting with their checkbooks. According to Machinery Pete , demand and values remain strongest for pre-DEF used equipment, while interest in DEF-equipped machinery has softened.

If these EPA actions lead to more reliable DEF systems or easier repairs, the high demand (and inflated prices) for older, less efficient equipment might eventually stabilize as newer models become less of a liability in the field.

5. More Changes are Coming.

When asked why EPA has not eliminated DEF requirements entirely,Zeldin said the agency said it is actively building on last summer’s guidance and actively moving toward “common-sense” adjustments that prioritize productivity alongside emissions standards.

EPA’s demand for warranty and failure data follows DEF guidance issued in August 2025 that significantly softened inducement rules. That guidance delayed severe derates, reduced sudden shutdowns and required manufacturers to update software so operators could continue safely working while addressing faults.

For heavy-duty trucks, warning periods were extended to up to 650 miles or 10 hours before derates begin, with weeks of normal operation allowed before speed is limited. Non-road equipment now sees no impact for the first 36 hours after a DEF fault.

EPA has also said that starting with Model Year 2027, new diesel trucks must be engineered to avoid sudden and severe power loss after running out of DEF.

Why EPA Says Farmers and Ranchers Won't Need a Lawyer to Understand the Newly Proposed WOTUS Rule

Fri, 21 Nov 2025 16:10:32 GMT

Agricultural groups have been asking for a new WOTUS rule that eliminates red tape and clears up confusion for farmers and ranchers. As EPA unveiled its latest proposed Waters of the U.S. (WOTUS) rule this week , Deputy Administrator David Fotouhi says the agency’s goal was simple: clarity, consistency and fewer regulatory headaches for farmers and ranchers.

Fotouhi joined “U.S. Farm Report” for an exclusive interview to break down what this new rule means and why EPA believes it hits the mark.

A Rule He Says Brings Clarity and Certainty

Fotouhi says the agency’s top priority is eliminating uncertainty farmers have faced under previous interpretations of WOTUS.

“We really emphasize the need for farmers, ranchers and all stakeholders to have clarity in terms of how broad or narrow federal regulation of waters is in this country,” he says. “From Day 1, we start working on a proposed rule to bring that clarity and certainty to landowners across the country. On Monday, we are able to announce a proposal that is consistent with the law, that provides needed clarity on the extent of federal regulation, and that recognizes the primary jurisdiction of states and localities because they know their resources best.”

He adds that the proposal strikes what he calls a good balance.

“We think we really strike a good balance between protecting our nation’s waters and making sure farmers and ranchers can do the work that feeds Americans and produces the fuel this country relies on — without adding unnecessary regulatory burden to their day-to-day life,” he says.

EPA Says Farmers “Won’t Need a Lawyer” to Understand the New Rule

Fotouhi stresses one of EPA’s biggest priorities in rewriting WOTUS was ensuring farmers no longer need legal help just to determine whether they can work their own ground. He says the agency intentionally crafted the language to be plain, practical and rooted in the realities producers face every day.

“We take a fresh look at the Supreme Court’s direction and try to apply that in language that is easily understandable. Producers should not need a lawyer to understand how this rule applies to their property. We write it in a way that lets farmers look at their land and have a clear sense of whether federal permits are required.”

Fotouhi explains past WOTUS rules often included terminology that was vague, overly technical or open to interpretation, something EPA heard repeatedly during outreach with farm groups.

He says the agency makes a conscious effort to eliminate that ambiguity.

“We listen to farmers tell us repeatedly that the rule has to be understandable,” he says. “So instead of broad definitions that leave too much room for interpretation, we focus on concrete, workable language. We take geographic differences into account, we remove subjective criteria and we make exclusions, like the groundwater exemption, explicit so there’s no second-guessing.”

Fotouhi says that level of clarity is a direct response to years of frustration in rural America.

“We know farmers need certainty,” he says. “They need to know what they can and can’t do without waiting months for an answer. That’s why we put so much effort into making this rule clear, transparent and grounded in what the Supreme Court actually tells us to do.”

EPA Pushes Back on Claims the Proposal Overpromises

Some critics argue the agency risks overpromising. Fotouhi strongly rejects that idea.

“We take a fresh look at all the critical issues the Supreme Court lays out in the Sackett decision,” he says. “We think the previous administration does not faithfully implement that decision when they revise the rule, so we come back, reassess everything and come up with a definition that fully implements what the Court tells EPA and the Army Corps to do.”

He notes the agency made readability a priority.

“We try to apply the Court’s direction in language that is easily understandable, that takes geographic differences into account, and that doesn’t impose unnecessary burdens on farmers when they’re trying to decide if they need a permit,” he says.

Groundwater Exclusion: “We Want It Crystal Clear”

One standout change is the explicit exclusion of groundwater — language EPA says is included to eliminate confusion.

“Groundwater has never been part of the Waters of the United States, but we think it is absolutely necessary to make that exemption clear as day so there is no confusion about whether someone would need a permit for a discharge that may impact groundwater,” Fotouhi says.

He says repeated questions from stakeholders and newer case law convinced the agency to spell it out directly.

“Based on the case law that’s come out in the last few years and the general confusion we hear from stakeholders, we think it is incumbent on us to clarify this as clearly as we can,” he adds.

Final Rule Expected in Early 2026

EPA filed the proposal with the Federal Register , which means the rule’s comment period is officially underway.

“We publish the rule today, and it will be out for public comment for 45 days,” he says. “We know there is an absolute need for certainty and clarity and one nationwide standard, so we move quickly. We are hopeful that in the first few months of 2026, we can have a final rule out for the public.”

RFS: EPA Reviewing Comments, Aims for Certainty

Fotouhi also discusses EPA’s proposed Renewable Fuel Standard volumes, including record-setting biomass-based diesel levels.

“We understand how important it is to get this exactly right. From day one, Administrator Zeldin is laser-focused on ensuring the RFS strikes the right balance,” he says. “We know farmers and all stakeholders implicated by this program need certainty. We are working as quickly as we can to take final action.”

EPA’s Deregulatory Push: More Actions to Come

Fotouhi says the agency’s deregulatory actions announced earlier this year will have significant impact on agriculture.

“Reducing the cost of energy is one of our biggest focuses,” he says. “Many of the actions we identify are aimed at reducing energy prices for farmers, ranchers and manufacturers so we can reduce input costs and ultimately reduce the cost of the products they produce.”

This is evident through their efforts on WOTUS.

“The WOTUS proposal is a prime example; it’s designed to reduce unnecessary and illegal regulatory burden, and we are undertaking a score of additional actions across offices, working with USDA, the Department of Energy and the Interior Department, to identify ways to reduce input costs for agriculture,” Fotouhi says. “A thriving agricultural sector is a priority for the president, and lowering consumer prices is something we have to achieve.”

New WOTUS Proposal Could Reduce Red Tape for Farmers and Ranchers

Mon, 17 Nov 2025 18:01:44 GMT

Farmers and ranchers could soon face fewer regulatory hurdles when working near waterways, as EPA and the Army Corps of Engineers released a new proposal on Nov. 17 to redefine “Waters of the United States” (WOTUS). The agencies say the proposed rule is designed to bring long-requested clarity to what features fall under federal jurisdiction potentially reducing permitting uncertainty for agriculture, landowners and rural businesses.

The proposed rule can be found on the Federal Register . The public can submit comments online there or via Regulations.gov on or before Jan. 5, 2026. During the announcement event on Nov. 17, EPA Administrator Lee Zeldin urged the public to submit comments.

The definition of WOTUS determines when producers must secure permits for projects that could affect surface water quality, including common activities such as building terraces, installing drainage or expanding livestock operations. EPA officials say the new proposal aims to align fully with the Supreme Court’s Sackett decision and prevent farmers from needing lawyers or consultants simply to determine whether a water feature on their land is federally regulated.

The proposal follows Zeldin’s promise in March to launch the biggest deregulatory action in history and a series of listening sessions in April and May that asked states, tribes, industry and agriculture to weigh in on WOTUS needs.

Clearer Definition After Years of Confusion

Zeldin and Assistant Secretary of the Army for Civil Works Adam Telle emphasize the rule is designed to be clear, durable and commonsense.

Key elements include:

Defined terms such as relatively permanent, continuous surface connection, and tributary to outline which waters qualify under the Clean Water Act.
A requirement that jurisdictional tributaries must have predictable, consistent flow to traditional navigable waters.
Wetlands protections are limited to wetlands that physically touch and are indistinguishable from regulated waters for a consistent duration each year.
Reaffirmed exclusions important to agriculture, including prior converted cropland, certain ditches and waste treatment systems.
A new exclusion for groundwater.
Locally-familiar terminology, such as “wet season,” to help determine whether water features meet regulatory thresholds.

EPA says these changes are intended to reduce uncertainty that has stemmed from years of shifting definitions across administrations.

Impact of WOTUS Proposal on Agriculture

For producers, the proposal could simplify compliance by narrowing which water features fall under federal oversight and confirming exclusions that many farm groups have long advocated.

Zeldin says the aim is “protecting the nation’s navigable waters from pollution” while preventing unnecessary burdens on farmers and ranchers. He criticizes past Democratic administrations for broad interpretations that, in his view, extended federal reach to features that did not warrant regulation.

Farm groups have argued for years that unclear or overly broad definitions can lead to significant costs, delays and legal risks when planning conservation work, drainage projects or infrastructure improvements. A more consistent rule could reduce project backlogs and limit case-by-case determinations that often slow progress during planting, construction or livestock expansion.

“We’ve seen WOTUS definitions, guidance and legal arguments change with each administration,” said Garrett Hawkins, president of the Missouri Farm Bureau, during the May 1 EPA listening session for agriculture . He adds: “farmers, land owners and small businesses are the ones who suffer the most when we don’t have clear rules.”

Several of those who gave testimony and public comment during the ag listening session argued that farmers and ranchers, who already struggle with unpredictable markets and tight margins, shouldn’t have to hire experts to identify elements of their own land.

“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,” says Kim Brackett, vice president of the National Cattlemen’s Beef Association, who also gave testimony in May.

Alignment With the Sackett Decision

After the Supreme Court’s 2023 Sackett v. EPA ruling , which restricted federal authority over many wetlands, the agencies say the previous WOTUS definition no longer aligned with the law. EPA already issued a memo earlier this year clarifying limits on jurisdiction over adjacent wetlands. The newly proposed rule is the next step in that process.

The proposed rule focuses on relatively permanent bodies of water — streams, rivers, lakes and oceans — and wetlands that are physically connected to those waters. Seasonal and regional variations are incorporated, including waters that flow consistently during the wetter months.

The current situation is a regulatory patchwork. Due to litigation that followed the January 2023 WOTUS rule, which was considered in the Sackett decision, different states are following different rules. Currently, 24 states, mostly the coastal and Great Lakes states, are operating on the 2023 rule, while the other 26 states, mostly those in center and in the Southeast, are operating on pre-2015 WOTUS rule.

Oversight Rests With State and Tribes

A major theme of the proposal is cooperative federalism, giving more authority to states and tribes to manage local land and water resources. EPA says the rule preserves necessary federal protections while recognizing states and tribal governments are best positioned to oversee many smaller or isolated water features.

Sections 101b and 510 of the CWA are key structural examples of the concept of cooperative federalism. The sections give states and tribes the right to set standards and issue permits for federal activities that could discharge pollutants into a water of the U.S. within the state or territory. The most common example of this are 404 dredge and fill permits.

This focus on cooperative federalism was the main chorus of the EPA’s listening session for states , held April 29, especially as it concerns wetlands.

“If more wetlands are excluded from WOTUS, then certain federal projects would not require a section 401 water quality certification by the states,” noted Jennifer Congdon, director of federal affairs for New York Department of Environmental Conservation, during the states’ listening session. She argues that such a situation could impair water quality within a state, thus violating states’ rights under the CWA.

What Happens Next

The proposed rule is available online for public comment on the Federal Register and Regulations.gov on or before Jan. 5, 2026. EPA and the Army Corps of Engineers will hold two hybrid public meetings, and details for submitting comments or registering to speak will be available on EPA’s website .

After the comment period, the agencies plan to move quickly toward a final rule.

“Once the rule is finalized, it typically takes effect 60 days after publication in the Federal Register pursuant to Congressional Review Act requirements,” the EPA press office told The Packer earlier this summer .

Based on these potential timelines, a new — potentially final — WOTUS rule could take effect as early as early March.

EPA Updates A/C Rules: What Farmers Need to Know

Tue, 30 Sep 2025 14:48:09 GMT

EPA has again revised standards for refrigerant used in vehicles.

R-12 refrigerant (aka “Freon”) was the go-to coolant for more than 50 years. Then it was discovered that chlorine atoms in escaped R-12 molecules accumulated in the atmosphere and damaged the ozone layer.

A new refrigerant, R-134a, came out in 1991 and replaced R-12’s miscreant chlorine atom with a fluorine atom — which breaks down in 10 to 12 years.

To further minimize damage to the environment, another new refrigerant, R-1234yf, was developed and replaced R-134a’s fluorine atom with a propylene atom — which breaks down in one day.

A transition to R-1234yf is underway. Professional mechanics who use refrigerant recovery and recycling (R&R) machines must have special training and EPA Section 609 certification to buy more than 2 lb. of R-1234yf.

Necessary Adjustments
Cans of R-1234yf are at auto parts stores and have Schrader-type valves, which need a matching fitting on R&R machines or sets of pressure gauges.

Older R-134a refrigerant and new R-1234yf refrigerant are not interchangeable. The propylene atoms in R-1234yf make it mildly flammable. For that reason, newer systems are designed with spark-free compressors and other components.

If farmers have on-farm R&R machines, they can be carefully flushed between exposures to R-134a and R-1234yf, but the newer refrigerant is slightly caustic. Long-term exposure to R-1234yf can damage internal components in machines designed for R-134a.

Farmers who own a set of air conditioning gauges have a similar situation.

“You can buy adapters to hook up an R-134a set of gauges to a R-1234yf system,” says Jeff Weidecke, trainer for MasterCool refrigerant handling systems. “If a guy has an R-134a set of gauges and uses adapter fittings, he’s going to start the vehicle up, disconnect from whatever keg or 1 lb. can they’re using and turn on the machine’s air conditioning system so the clutch and compressor engage. Any R-134a refrigerant left in the hoses will be boiled off and pulled into the vehicle’s R-134a system. Then you can run R-1234yf through those gauges to check or fill a system.”

Weidecke notes that because R-1234yf is a more efficient than R-134a, compressors and other air conditioning system components are smaller, and less refrigerant is used.

“The factory-fill for a lot of new cars is only 12 to 14 ounces,” he says.

Breaking News: EPA Backs Existing Wastewater Regulations, Prevents Catastrophe for Processors and Producers

Tue, 02 Sep 2025 13:46:00 GMT

The longstanding Meat and Poultry (MPP) Effluent Guidelines and Standards will stand, announced Environmental Protection Agency (EPA) Administrator Lee Zeldin on Aug. 30. He says the proposed changes to the regulation are unnecessary.

EPA determined existing federal wastewater regulations under the Clean Water Act are effective and the burdens proposed changes would inflict on meat and poultry processors are unwarranted.

“The National Pork Producers Council (NPPC) applauds the Trump administration and EPA Administrator Zeldin for taking a common sense approach on the Meat & Poultry Processing Rule,” says Duane Stateler, NPPC president and pork producer from McComb, Ohio. “As proposed by the previous administration, this rule—which provides no environmental benefits—would have been devastating to small- and medium-sized meat processors across the country and the livestock farmers who rely on them as markets for their animals.”

EPA’s action will save not only the nearly 100 local meat processors that EPA itself identified would have to close down but also the thousands of family farmers who rely on them to stay in livestock production, Stateler points out.

“It will help ensure affordable, nutritious American-grown pork can continue to be served on dinner tables across the country,” Stateler says.

Moving Forward
The decision closes the book on a nearly two-year comment and consideration process in which NPPC and other stakeholders have worked with EPA to better inform the agency’s decision and preempt unnecessary harm.

“Under the prior proposal, if it were finalized, major pork processors would have faced significant costs to install new waste water management systems,” explains Michael Formica, NPPC chief legal strategist. “During that period of construction, some plants would likely have needed to temporarily shut down. Others might have had to cut back on how many shifts they run.”

EPA’s internal analysis showed that dozens of facilities, likely small and medium-sized, would be forced to shut down because they would be unable to afford the cost of the technology required to comply, Formica says. Overall, the industry would have realized additional costs estimated at greater than $1 billion a year.

“Producers who rely on those processors would have then been without a market for their livestock,” Formica adds.

Unnecessary Expansions
The Meat and Poultry Products Effluent Guidelines and Standards was enacted in 1974 by the EPA and amended in 2004 to cover wastewater directly discharged by processing facilities. NPPC says the proposed amendment would have established more stringent technological requirements for controlling discharges from processors and significantly increased the scope of plants that were covered by the rules.

While the agricultural industry and the meat and poultry processing sectors support clean water efforts, EPA found these expansions were unnecessary.

NPPC says it appreciates EPA taking no action on the proposal, which would have disrupted packing capacity and livestock markets, in turn inflicting additional financial harm on producers and leading to further industry concentration and the loss of independent farmers.

The Meat Institute says the proposed rule would have also harmed the relationship between meat and poultry processing (MPP) facilities and publicly-owned treatment works (POTWs).

“Indirect discharging MPP facilities often make significant financial investments in maintaining and upgrading the POTW or shouldering major surcharges for the POTW’s continued operation and maintenance, which reduce public treatment costs for residential ratepayers and improve the quality of local and downstream waters,” the Meat Institute wrote in a statement.

Avoid Confusion: Clear the Air on CAFOs

Mon, 05 May 2025 20:23:38 GMT

Concentrated animal feeding operations have continued to sustain meat and dairy industries since their implementation many decades ago by providing a steady flow of livestock for food chains for home and consumers abroad.

Contrary to popular belief, Kansas State University extension livestock specialist Joel DeRouchey says CAFOs present a more efficient opportunity to raise livestock with less stress on the environment.

“While CAFOs can get a bad rap due to their ability to house many animals in one location, they face some of the most stringent regulations for environmental protection, which is good for surrounding land and water quality,” he points out on Agriculture Today with the K-State Radio Network .

After considering what’s regulated, how CAFOs handle manure, how it’s applied and the regulations and inspections involved from both the state and potentially the Environmental Protection Agency (EPA), DeRouchey says these operations are in business for a reason.

“They’re doing a very good stewardship for both for the land and water quality,” he adds.

Feedlot

(Shelby Chesnut)

But Josh McCann, associate professor of animal science at the University of Illinois, says it’s understandable people may have questions about CAFOs.

“I think it’s easy to get nervous or ask questions about things that we’re not exposed to, that we aren’t very familiar with,” McCann says.

CAFOs are highly professional environments led by teams of experts who help those animals remain healthy, grow in a productive way and provide an extremely affordable protein for Americans and people around the world, he adds.

“We have some of the very best nutritionists, the very best veterinarians, the very best management experts working at these facilities to help those animals actually grow and prosper,” McCann says. “I don’t think people truly appreciate the amount of effort, investment of time and people and science that goes into this.”

Is Your Operation a CAFO?
CAFOs include cattle and small ruminant feedlots, confined large indoor and outdoor swine and poultry operations and dairy facilities that meet the criteria as a CAFO. Once a CAFO is designated for a site, it has both state and federal requirements under which it must operate.

The challenge is every state is different when it comes to its respective state regulations, he says.

“Permitting of different livestock species could be different within a state and certainly is across states,” DeRouchey says. “But the bigger pictures items are the same.”

To be a CAFO, EPA explains that farms must first be an Animal Feeding Operation (AFO). If a farm does not meet the definition of an AFO, the EPA rules do not apply to it.

The AFO definition has two parts: Part 1 - A lot or facility where animals have been, are, or will be confined and fed or maintained for a total of 45 days or more in any 12-month period. Part 2 - Where vegetation (crops, forage, post-harvest residues) is not sustained in the normal growing season over any portion of the lot or facility.

“There are many factors to consider when determining if your farm is a CAFO. Bottom line: Manage your farm in a way that ensures no discharges to WOTUS,” the Illinois Pork Producers Association says on its website .

For example, in Kansas, any facility with an animal unit capacity of 300 or greater must register with the Kansas Department of Health and Environment (KDHE). Additionally – regardless of size – any facility that presents a significant water pollution potential must obtain a permit as determined by KDHE.

“Feedlot cattle over 700 pounds would be considered a single animal unit, 700 lb. and less is a half and cattle such as a lactating dairy cow would be considered 1.4,” DeRouchey says. “These figures relate to their feed intakes and the amount of manure produced per body weight.”

Another factor to consider when determining the size of your CAFO is if a farmer has multiple sites where animals are confined, they must determine if those sites are separate AFOs or should be combined. In Illinois, under the IL EPA Livestock Rules, two or more AFOs under common ownership would be a single AFO if the AFOs are adjacent to each other or the AFOs utilize a common area or system for handling or disposing of manure.

“Most situations in which pigs are raised will likely be defined as an AFO,” IPPA says. “If your farm is an AFO, then you must determine if you are a small, medium or large CAFO, which factors in the number of animals that are confined on the farm and whether pollutants are being discharged into Waters of the U.S (WOTUS).”

When determining if the operation has any discharges, a farmer must look at the entire production area including manure storage, feed storage and dead animal composting to determine if there is a discharge.

“CAFOs are strictly permitted to have full containment of all rainwater and runoff that reaches a pen surface, and the same goes for cleaning pen surfaces,” DeRouchey explains. “Manure must be stored in a contained area until it’s moved out to fields for spreading.”

Compliance is Key
Many regulations like these are in place to help keep the environment, water and land safe for multiple generations, McCann says.

Dairy

(Jim Dickrell)

To ensure compliance with these regulations, CAFOs undergo periodic on-site state inspections and a permit renewal where producers update their paperwork and nutrient management plan with any changes to the operation. An essential part of that process is developing a new nutrient management plan that says what’s going to occur with the application of manure to the agronomic crop ground surrounding the facility, DeRouchey says.

“With soil tests and manure samples taken, new projections are completed to ensure that the manure produced on those operations fits all the acreage,” DeRouchey says.

The challenge is those nutrient management plans are pretty region-specific, McCann says.

“Rainfall here in central Illinois is extremely different from rainfall in western Kansas,” he adds. “The appropriate ways you need to manage the nutrients in your animal waste is accordingly also very different. I think that’s one of the reasons why we have a lot of state-by-state regulation within this area.”

Compliance starts before the CAFO is constructed. Assessments, based on the species housed in the CAFO, look at criteria like geography. For example, in feedlots, rainwater drainage containment, manure storage areas, and agronomic manure application plans rank as some of the most crucial considerations.

Be a Good Neighbor
The one thing that’s not regulated directly is odors, DeRouchey says. Owners routinely clean pen surfaces as well on the outdoor facilities because the top layer of manure can turn into dust if it’s there too long, and that can carry odor from the CAFO to surrounding areas.

“We know that large or small operations have odor from livestock,” he adds. “And that doesn’t matter if you only have a couple animals or a lot of animals. What owners often do is look at, where can they potentially put up windbreaks? Where is the prevailing wind coming off of those facilities? How does that impact the surrounding area? How do they minimize potential dust? Because odor really travels a lot on dust.”

Being a good steward and making sure we’re minimizing any potential impact that our livestock farms would have on the surrounding area involves being aware of how it affects our neighbors, DeRouchey says.

“USDA scientists have confirmed that U.S. pork producers’ rigorous biosecurity efforts to keep pigs healthy are working,” says NPPC President Lori Stevermer.

(National Pork Board and the Pork Checkoff)

Eldon McAfee , attorney with Brick Gentry P.C. in West Des Moines, Iowa, says operational environmental management extends to neighbor awareness, communication and good relations.

“Don’t ignore neighbors who aren’t happy with your operation. Keep those lines of communication open,” McAfee says. “For example, when you apply manure, try to let everyone know. Attend educational seminars and obtain certifications to show you are being a good neighbor. Make sure employees are up to date on best practices when it comes to being a good neighbor, too.”

Can We Feed the World Without CAFOs?
CAFOs exist for a reason, McCann says. Some of those reasons are economic-related, and some of those are people-related.

“I would make the case that there are not enough people who want to work in the livestock industry and meet our animal protein needs without CAFOs now,” he says. “It’s pretty hard to imagine feeding a world that really craves lean, healthy, wholesome protein from livestock today without CAFOs. That’s difficult to do in my mind.”

Your Next Read: Don’t Let Your Guard Down: How to Avoid an Ag Nuisance Lawsuit

Top Takeaways from Zeldin’s Confirmation Hearing for EPA Lead and the Impact On Ag

Fri, 17 Jan 2025 13:36:45 GMT

President-elect Donald Trump’s nominee to lead the Environmental Protection Agency (EPA), Lee Zeldin, underwent hours of testimony Thursday, commenting on everything from year-round E15, the Renewable Fuels Standard (RFS) and the controversial WOTUS rule. When pressed about climate and environmental policies, Zeldin stated he believes climate change is real.

During the hearing, Sen. Pete Ricketts (R-Neb.) asked Zeldin to ensure access to year-round E15, but he did not make a definitive commitment, responding cautiously. Zeldin stated that while he couldn’t prejudge the outcomes of any processes, he acknowledged the importance of the issue to Sen. Ricketts and President Trump.

His exact words were: “Senator, while I can’t prejudge outcome of processes to follow across the board, I know how important this issue is to you and I know how important this is to President Trump.”

Despite this non-committal response, leaders of ethanol industry groups, including the American Coalition for Ethanol and Growth Energy, expressed appreciation for Zeldin’s commitment to doing his part to ensure nationwide availability of year-round E15.

Zeldin’s Stance on Ethanol
Zeldin’s stance on ethanol has been a point of interest, given his previous opposition to ethanol usage mandates during his time in Congress. Zeldin was asked about upholding legal deadlines for new Renewable Volume Obligations (RVO) standards, which are part of the RFS program.

Ricketts criticized the Biden administration for setting RVOs below industry production levels and not meeting the law’s deadlines. Zeldin expressed his commitment to implementing the Renewable Fuel Standard (RFS) as written by Congress.

He stated, “If confirmed, I commit to you that I will faithfully execute the law as written by Congress.” This statement was seen as an attempt to reassure senators from agricultural states who are concerned about the EPA’s implementation of biofuel policies.

Zeldin addressed his past opposition to ethanol usage mandates. He acknowledged that his views on the issue have evolved since his time in Congress.

Zeldin stated, “My position has evolved. I’m not in the same place I was years ago.”

He explained that his perspective has changed due to conversations he’s had with farmers, producers, and others in the industry. Zeldin emphasized that he now has a better understanding of the importance of ethanol to rural economies and energy security.

To further illustrate his evolving stance, Zeldin mentioned that he has visited ethanol plants and spoken with industry stakeholders.

He said, “I’ve learned a lot more about ethanol. I’ve visited plants. I’ve talked to a lot of people in the industry.”

WOTUS Rule Opposition
The EPA nominee has been vocal about his opposition to the Waters of the United States (WOTUS) rule. He expressed strong criticism of the Biden administration’s decision to reinstate and expand the WOTUS rule. Zeldin argued that the WOTUS rule represents federal overreach and places an undue burden on farmers, landowners, and local governments.

He stated that the rule would negatively impact agriculture, construction, and other industries by expanding federal authority over water bodies and wetlands. The congressman emphasized that the expanded definition of WOTUS would lead to increased regulations and permitting requirements for activities on private property. He contended that this expansion of federal control would hinder economic growth and development in rural areas.

In his statement, Zeldin called for the repeal of the WOTUS rule, advocating for a more limited interpretation of federal jurisdiction over water bodies. He supported efforts to restrict the Environmental Protection Agency’s (EPA) authority in implementing the rule, arguing that states should have more control over their water resources.

Zeldin’s position on WOTUS aligns with many Republican lawmakers who view the rule as an example of government overreach and excessive environmental regulation. His statements reflect a broader debate about the balance between environmental protection and economic development in water resource management.

Zeldin’s Criticism of EPA Staff
Zeldin made notable comments regarding EPA staff. He criticized EPA employees for what he described as their attempts to undermine the Trump administration’s policies.

Specifically, Zeldin accused some EPA staff members of leaking information to the media and actively working against the administration’s agenda. He expressed concern that these actions were hindering the implementation of policies and creating unnecessary obstacles for the agency’s leadership. The congressman’s remarks were part of a broader discussion on government accountability and the role of career civil servants in executing administration directives.

Zeldin emphasized the importance of loyalty to the current administration’s goals, regardless of personal political beliefs.

Climate Change and Climate Policies
As for his position on climate change, the hearing showed the political dynamics and implications surrounding the issue considering President-elect Donald Trump’s stance, particularly as seen through an exchange involving Zeldin with Sen. Bernie Sanders (I-Vt.) and Sheldon Whitehouse (D-R.I.). Sanders emphasized the existential threat of climate change, framing it as a matter transcending politics. Whitehouse voiced concern about Zeldin’s ability to resist fossil fuel industry influence.

Zeldin stated, “I believe that climate change is real,” marking a departure from previous EPA leaders during the first Trump administration and from President-elect Trump, who has previously labeled climate change a “hoax.”

Regarding EPA’s role in regulating carbon dioxide emissions, Zeldin referenced a 2007 Supreme Court decision, noting that while the ruling grants the EPA the authority to regulate greenhouse gases, it does not mandate such action. He emphasized that the agency is “authorized, not required” to regulate carbon dioxide emissions.

When pressed on specific climate policies, such as reducing reliance on fossil fuels, Zeldin refrained from committing to particular actions. He expressed a desire to collaborate with scientists and policymakers, stating, “I don’t sit before you as a scientist.”

In response to inquiries about campaign donations from fossil fuel companies, Zeldin asserted that financial contributions would not influence his decisions, emphasizing his commitment to impartiality in his role as EPA Administrator.

Of note:
Throughout the hearing, Zeldin underscored the importance of protecting the environment without hindering economic development. He stated, “We can, and we must, protect our precious environment without suffocating the economy.”

Economists React to Zeldin’s Nomination

December Ag Economists’ Monthly Monitor

(Lindsey Pound )

In the December Ag Economists’ Monthly Monitor and prior to this week’s hearing, Farm Journal asked economists about what Zeldin’s past stance on ag issues could mean if he’s approved as the next EPA adminstrator.

Based on Zeldin’s track record, 60% of economists said they don’t think Zeldin’s policies will be positive for agriculture. 40% said they do think his policies will be good for agriculture.

In the survey, economists said:

“I expect there to be fewer new regulations in the Trump Administration. This is positive for agriculture.”
“I imagine many of the tax credits for new demand (either low carbon fuels or carbon programs) will be on the table to be cut.”
“He generally is not a fan of the RFS. My guess is that he will impact the RFS only marginally.”
“A deregulatory agenda could be positive for many farmers, but Zeldin has a record that is not favorable toward biofuels. How he (and the President) will address biofuel issues is unclear--in the first Trump administration, there were many large disputes between pro-biofuel and pro-fossil fuel interests.”
“His track record is negative toward liquid biofuels, which is a big part of our domestic demand.”

Related News:

Trump Taps Lee Zeldin to Lead EPA; What Does It Signal for Agriculture?

Trump Taps Lee Zeldin to Lead EPA; What Does It Signal for Agriculture?

Tue, 12 Nov 2024 15:36:35 GMT

President-elect Donald Trump has selected former New York congressman Lee Zeldin to lead the Environmental Protection Agency (EPA) in his upcoming administration. This appointment signals a potential shift in environmental policy and regulatory approach. Here are the key points about this nomination:

• Zeldin is a former Republican congressman who represented New York’s 1st congressional district from 2015 to 2023.
• He lacks extensive experience in environmental policy, having not served on committees with direct oversight of environmental issues during his time in Congress.
• Zeldin has a lifetime score of only 14% from the League of Conservation Voters, indicating a record of frequently voting against environmental legislation.

Trump stated that Zeldin would “ensure fair and swift deregulatory decisions” to “unleash the power of American businesses.” The administration aims to maintain “the highest environmental standards, including the cleanest air and water on the planet” while pursuing deregulation.

Zeldin is expected to focus on restoring “U.S. energy dominance” and revitalizing the auto industry.

He may be tasked with rolling back several Biden administration environmental regulations, particularly those targeting power plant pollution and vehicle emissions. There are plans to end the pause on constructing new natural gas export terminals and potentially withdraw the U.S. from the Paris climate agreement.

Zeldin joined Trump and Sen.-elect Dave McCormick in Pennsylvania for a roundtable on agriculture during Trump’s campaign in September. Zeldin praised Trump for addressing the “threat” of foreign entities buying U.S. agricultural land and highlighted Trump’s trade policies, including the U.S.-Mexico-Canada Agreement, which prioritized American farmers and strengthened supply chain resiliency.

Of note to the biofuels sector, In November 2015, Zeldin and several other members of Congress sent a letter to EPA Administrator Gina McCarthy expressing concerns about the proposed 2016 Renewable Volume Obligations (RVOs) under the Renewable Fuel Standard (RFS) program. The lawmakers worried that the proposed 2016 RVOs would require blending more ethanol than could be absorbed by the E10 gasoline market, effectively “breaking through” the blend wall. There were concerns that exceeding the blend wall could drive up the price of E10 gasoline for consumers. Ultimately, the EPA did finalize 2016 RVOs that were lower than originally proposed in the RFS statute, but still represented an increase over previous years. The agency attempted to balance the competing interests and technical constraints in the fuel market.

Meanwhile, discussions are underway about possibly relocating the EPA headquarters outside of Washington, D.C.

Environmental advocates criticized the nomination, viewing it as a potential regression in environmental policy. Zeldin’s record includes opposition to several climate-related bills and support for increased fossil fuel production.

Zeldin’s appointment as EPA Administrator will require Senate confirmation.

Government Regulation Hits Rural Landowner As Feds Claim Dry Ditch Is “Waters of US”

Tue, 23 Apr 2024 20:06:30 GMT

Standing in a ditch drier than a saltine, Iowa landowner Dan Ward kicks at parched dirt, searching for answers. “I’m looking for common sense and finding none,” he says. “Who pretends ground is wet when there’s not a drop of water? Who ignores Supreme Court rulings and dares the citizenry to do something? Only federal bureaucrats.”

Ward cannot build a pond on his 420-acre farm property because government officials consider a dry depression that runs half-a-mile across the land, over 100 miles from the nearest navigable river, to be “waters of the United States.”

“We’ve reached a place where our own officials believe they can disregard Supreme Court law,” Ward contends. “What the government is doing on my land is 100% about keeping power.”

Abide or Reject?

Two steps forward, three steps back for U.S. landowners and farmers?

In May 2023, in Sackett v. EPA , the Supreme Court (SCOTUS) announced a 9-0 decision heralding a major reduction in government power by returning the Clean Water Act’s (CWA) reach to its original bounds. In a major rebuke to EPA and Army Corps of Engineers, SCOTUS confined federal control of waters and noted that a water body’s designation should be obvious to the public, i.e., common sense should be in play.

Justice Samuel Alito was specific: “the CWA’s use of ‘waters’ encompasses only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes.”

With the SCOTUS decision in stone, did EPA and Army Corps of Engineers—the two governmental arms at the helm of water regulations—abide by the ruling? “No. They broke it immediately,” Ward says. “They ignored it and carried on, right on my property.”

“Off The Rails”

In Decatur County, roughly a quarter mile above the Missouri line, Ward owns 420 acres in central Iowa. His rolling ground features 200 acres of timber, 180 acres of prairie, and 40 acres of row crops laced by ridges and shallow ravines in the heart of world-class whitetail country. “I’m a serious steward of this land and I spend every moment out here trying to increase the health and habitat of my ground.”

(Farm Journal)

The property contains nine tiny ponds that once served as livestock watering holes, each approximately a quarter acre in size. In 2023, Ward set out to build a nine-acre pond: “I wanted a better aquatic habitat for me and my 13 grandkids for fishing purposes and to create another ecosystem out here. From habitat to recreation, I want to improve things and make this place pristine.”

Ward’s pond site crossed 2,800’ of a dry ditch that runs 3,500’ across his land at a width ranging from 3’ to 5’. A quarter mile off Ward’s property line, the dry ditch leads to Caleb Creek, which bleeds into the Weldon River, which flows into the Thompson River, which empties into the Grand River, and later into the Missouri River.

“Basically, I call it a dry ravine or dry depression,” Ward describes. “There’s no water in it unless it rains the same day. Come after the rain and all you’ll find is some isolated puddles. It leads to a creek off my property. The nearest navigable river—the Grand—is over 100 miles away.”

As a career contractor at the helm of a heavy industrial company involved in aluminum and steel rolling mill foundation work, Ward was intent on building the pond correctly from the get-go. He hired a civil engineer to design the pond, engaged a geotechnical company to take soil boring samples, and paid for a wetlands delineation that proved negative.

“I did everything aboveboard, upfront, and followed the rules. I’ve done work for the Corps and have several contracts with them, and I’d never do anything detrimental to the environment. Because of the height of the required pond levee, I filed for a dam permit with the Iowa Department of Natural Resources. They sent my application details to the Corps and that’s when things went off the rails.”

Suddenly, in the eyes of federal officials, Ward’s dry ditch became a fast-flowing “stream,” and his proposed pond had the potential to harm wildlife habitat, disturb historic artifacts, and damage waters of the United States.

$1 Million

Corps officials visited Ward’s property in April 2023—a four-hour stay. “It was ridiculous,” Ward describes. “It had rained recently and there were pools of water in what they claimed was a stream. The Corps was here one time for literally four hours, but that was all they needed to claim jurisdiction. I sent them pictures from all throughout the year, including December, showing a completely dry ditch, but they said it was only because of drought.”

(Farm Journal)

However, Sackett v. EPA threw a monkey wrench in the Corps’ jurisdiction on Ward’s acreage. “Suddenly, they told me they might lose jurisdiction based on a big Supreme Court case. Sure enough, after the Sacketts won that case, the Corps told me they couldn’t speak officially yet, but that they no longer had jurisdiction, but I’d have to wait for the final ruling.”

(The Army Corps of Engineers declined Farm Journal questions related to Dan Ward and the Sackett ruling, citing the pending appeal.)

Ward waited, month after month, with the ditch dry. “I kept calling the Corps, wanting an answer. Finally, they said they’d been given additional tools by EPA and they now had jurisdiction again. It’s simple: The Corps was buying time to find a way around the Sackett ruling. They would never ignore the Supreme Court unless they felt they had the power to do so.”

Yet, after the government took jurisdiction of Ward’s property, the Corps didn’t deny him a pond permit—a misleading measure, he contends. Instead, Ward was required to check off a series of regulatory boxes and pay a hefty sum.

“They told me that there was absolutely no permit denial, while meanwhile they tried to wear me down. All I had to do, they said, was go through their process, step by step, which could easily cost in the six-figure range or much higher, and I still wasn’t guaranteed a permit.”

“In my case, the Corps said I had to do a ‘needs assessment’ on why I needed the pond. Then, I was required to do an ‘archeology study’ to make sure no artifacts were disturbed. Then, I had to do a ‘wildlife habitat’ study. Then, I had to come up with a plan to replace the stream somewhere else by building or restoring another stream in equal size or buy stream credits similar to carbon credits. The credits were going to cost me upwards of $1 million.”

Ward had two options: Kill the pond project or seek legal help.

Enter the Pacific Legal Foundation (PLF)—the same law firm that stood before the Supreme Court and won the Sackett ruling in 2023. In a PLF release, attorney Charles Yates spoke bluntly: “The ‘stream’ that the Army Corps claims it has the power to regulate bears more resemblance to a hiking trail than a body of water. The Corps seems to think that observing water trickling on one day, after a large rainstorm, magically transforms this unremarkable groove into a navigable water it can regulate under the Clean Water Act. It’s exactly the kind of thing the Supreme Court sought to end in Sackett, but the Corps hasn’t gotten the message.”

“Shame On All Of Us”

In February 2024, backed by PLF, Ward filed a regulatory appeal with the Corps.

“Sackett made it clear that ‘only those relatively permanent, standing, or continuously flowing bodies of water’ could be regulated,” PLF attorney Sean Radomski says. “However, the Corps is trying to control a dry, unnamed tributary that is about 100 miles from any navigable water. This is quintessential government overreach.”

Almost a year after SCOTUS’ Sackett decision, how many cases like Ward’s are in EPA and Corps crosshairs?

“Mr. Ward’s situation is not in isolation,” Radomski says. “We are seeing more Clean Water Act cases filed that don’t come close to the Sackett test. I’m presently involved in the Eastern District of North Carolina with a similar case on private land. It’s so important to stay involved, because if things continue, Sackett will be a Pyrrhic victory where you win one battle and lose the war. If we don’t stay awake, the government will ignore Sackett.”

Ward’s appeal is currently under Corps review. His case potentially could go into a federal court in the Southern District of Iowa before a neutral judge.

“There’s a point where you fight back or lose everything because power-hungry officials are never satisfied—regardless of what the Constitution says,” Ward concludes. “Over long periods of time they slowly take more power and ignore additional law. Shame on all of us for letting them.”

For more articles from Chris Bennett ( cbennett@farmjournal.com or 662-592-1106), see:

Power vs. Privacy: Landowner Sues Game Wardens, Challenges Property Intrusion

Corn and Cocaine: Roger Reaves and the Most Incredible Farm Story Never Told

American Gothic: Farm Couple Nailed In Massive $9M Crop Insurance Fraud

Priceless Pistol Found After Decades Lost in Farmhouse Attic

Cottonmouth Farmer: The Insane Tale of a Buck-Wild Scheme to Corner the Snake Venom Market

Tractorcade: How an Epic Convoy and Legendary Farmer Army Shook Washington, D.C.

Bizarre Mystery of Mummified Coon Dog Solved After 40 Years

While America Slept, China Stole the Farm

EPA’s New WOTUS Rules: What Producers Need to Know About

Tue, 29 Aug 2023 19:25:51 GMT

The Environmental Protection Agency (EPA) announced new Waters of the U.S. (WOTUS) rules on Tuesday, following a May Supreme Court ruling in Sackett v. EPA , that required EPA to revise the WOTUS definition.

“We have worked with EPA to expeditiously develop a rule to incorporate changes required as a result of the Supreme Court’s decision,” said Michael L. Connor, Assistant Secretary of the Army for Civil Works. “With this final rule, the Corps can resume issuing approved jurisdictional determinations that were paused in light of the decision.”

Under the new rule, two primary changes were made, including:
• Clarification that wetlands protected under the Clean Water Act must have a continuous surface connection to navigable waterways
• Removal of the highly debated “significant nexus” test, which was used to determine whether there was a connection between small and large bodies of water

What do these policy changes mean? Private property is better protected from being taken by the government, according to Rep. Glenn Thompson (R-Pa.). But this isn’t the first time WOTUS rules have been modified.

Is the new WOTUS definition good for ag?

WOTUS rules have evolved many times in the past 50 years, with each administration crafting their own version of the rules.

In December 2022, EPA revised WOTUS—ahead of the Supreme Court’s ruling—to give federal protection to large waterways, like interstate rivers and streams and wetlands that are adjacent to them. Many ag groups did not support these changes and shared their concerns in discussions, and in court. Some, including Ted McKinney of the National Association of State Departments of Ag (NASDA), don’t think EPA got the message.

“The ruling in Sackett v. EPA was a chance for EPA and the Army Corps to correct a deeply flawed, prematurely released rule and work to truly improve water quality outcomes. It is baffling that the revised rule does not accurately address all the issues and questions raised by the Supreme Court, nor does it address many of the questions stakeholder groups raised about the WOTUS rule EPA released at the end of last year,” McKinney said.

Zippy Duvall, Farm Bureau president, mirrored McKinney, saying the new WOTUS definition is another round of whiplash on growers.

“We’re pleased the vague and confusing ‘significant nexus’ test has been eliminated as the Supreme Court dictated. But EPA has ignored other clear concerns raised by the Justices, 26 states, and farmers across the country about the rule’s failure to respect private property rights and the Clean Water Act,” Duvall said.

Related story: WOTUS Ruling Causing Confusion in Key Ag States

Mary-Thomas Hart, chief counsel at National Cattlemen’s Beef Association (NCBA), took a different stance on EPA’s announcement. While she applauded the EPA’s swift transition to a new rule, Hart says the association will monitor changes to ensure cattle producers are protected.

Moving forward, EPA says it plans to host events to communicate WOTUS changes. To kickstart the conversation, the agency scheduled a public webinar on Sept. 12, when it will outline the latest WOTUS revisions. Those interested in attending can register here .

WOTUS Meetings on the Calendar with New Recommendations in Tow

Tue, 25 Jul 2023 19:51:42 GMT

In a letter sent on Tuesday by the Waters Advocacy Coalition, demands are made for the Biden administration to exclude ditches from the definition of federal waters, include wetlands only when they can’t be distinguished from navigable waters, and erase the independent interstate waters and wetlands category.

The Coalition represents many sectors including energy, forestry, real estate, and transportation. Their affiliations range from the American Gas Association to the National Association of Home Builders and Chamber of Commerce. Both the Environmental Protection Agency (EPA) and the Army Corps of Engineers were communicated this request.

WOTUS Timeline

EPA and the Corps have announced their intention to release a final rule consistent with the Supreme Court’s Sackett v. EPA ruling from May 25 by Sept. 1. In the mentioned ruling, it constricted the scope of waters included in the Waters of the United States (WOTUS) definition, marking a setback for the Biden administration.

The Coalition’s letter petitioned the agencies to not merely strike the “significant nexus” language or the definition of “adjacent waters” in the final rule. The Coalition believes such an approach would neither be a defendable response to the Supreme Court decision in Sackett v. EPA nor would it be a suitable course for this particular rulemaking process.

New WOTUS Meeting on the Schedule

The letter comes as the Office of Management and Budget (OMB) is preparing for meetings to discuss amendments to the WOTUS rule, proposed by the EPA. So far, eight meetings have been arranged to review the final rule.

The schedule includes sessions commencing on July 27 with the Waters Advocacy Coalition and the American Road and Transportation Builders Association. Additional meetings are planned for July 31 with RISE (Responsible Industry for a Sound Environment) and the National Mining Association.

In the following week, Aug. 1 is earmarked for consultations with the Edison Electric Institute, National Association of Homebuilders, and the National Stone and Gravel Association. The series of meetings will conclude on Aug. 4 with the American Farm Bureau Federation.

EPA has committed to finalizing and releasing their definitive rule by Sept. 1, 2023.

The Countdown is on for EPA to Revise WOTUS

Tue, 18 Jul 2023 18:56:03 GMT

EPA is facing a regulatory countdown for amendments to the “Revised Definition of ‘Waters of the United States’” (WOTUS) rule.

EPA has now submitted a package of amendments to the Office of Management and Budget (OMB) for their review, although the specifics of these changes have not been disclosed. This action follows a restriction placed on EPA’s power to regulate wetlands by the U.S. Supreme Court.

Additionally, the EPA has won a reprieve to postpone its appeal against an injunction that stopped the enforcement of the WOTUS rule in 24 states, as guided by a verdict from the Eight Circuit Court of Appeals. The rule’s enforcement has also been halted in Texas and Idaho.

Through a court filing, the EPA has proposed that their amended rule could focus the issues of the case more effectively, enabling those involved in the lawsuit to respond to the revised rule without engaging in unwarranted litigation.

EPA is expected to release the new rule by Sept. 1, with a deadline from the court to offer a progress report on the matter by Sept. 15.

Ag Climate Data Collection to be Improved with $300 Million Investment

Wed, 12 Jul 2023 21:24:05 GMT

Ag accounts for 11.2 percent of U.S. greenhouse gas emissions, according to a USDA’s 2020 estimates . While these estimates are two years old, USDA intends to improve the future measure, monitoring, reporting and verification of ag climate emissions via a $300 million investment announced on Wednesday.

“We have to improve the scientific backbone of our programs. This new investment by USDA in improving data and measurement of greenhouse gas emissions…is unmatched in its scope and potential to increase accuracy, reduce uncertainty and enhance overall confidence in these estimates,” says Tom Vilsack, USDA secretary. “We’re data driven, and we seek continuous improvement in our climate-smart agriculture and forestry efforts.”

With the funds and stakeholder recommendations in tow, USDA says it will:

• Create a soil carbon monitoring and research network
• Establish a GHG network
• Expand data management, infrastructure and capacity
• Improve models and tools for assessing GHG outcomes at state, regional and national levels
• Improve NRCS conservation standards and use data to reflect GHG capture opportunities
• Revamp coverage of conservation activity data
• Strengthen GHG inventory and assessment programs at the USDA

The investment follows the ethanol industry calling out the Environmental Protection Agency (EPA) for using obsolete data to measure ethanol’s GHG contributions.

“EPA is using outdated analysis from more than a decade ago to measure the carbon intensity of ethanol and other biofuels, despite the Department of Energy having updated data,” says Chris Bliley, Growth Energy’s senior vice president. “This practice limits ethanol markets.”

Related story: Fuels Parity Act Could Open a New Market Door for Ethanol

New legislation, titled the Fuels Parity Act , was introduced in the U.S. House to address the EPA GHG data and market limitations. While this act could help open market doors, the Food and Ag Climate Alliance (FACA)—an 80+ member ag coalition that includes committee members from groups such as Farm Bureau and NASDA—is confident this USDA funding will help pry open market doors as well.

“FACA supports science-based evaluation mechanisms for GHG quantification that account for the diversity and breadth of ag and forestry production systems. This work is critical to enhancing trust and confidence in the measurement of emissions outcomes that will allow new markets to flourish,” said FACA in a press release .

The $300 million will be tapped from the $20 billion Inflation Reduction Act that was signed into law in August 2022.

EPA to Release More WOTUS Rule Information

Sat, 01 Jul 2023 19:27:54 GMT

Earlier this week we reported that EPA plans to revise the “Waters of the United States” (WOTUS) regulation by Sept. 1. This move follows a Supreme Court ruling that limits federal protection of wetlands. EPA has not yet released a statement about the matter.

In its May 25 decision , SCOTUS said the 1972 Clean Water Act (CWA) only applies to marsh-like areas with a direct connection to bodies of water such as streams, oceans, rivers, or lakes. This deviates from the previous standard set by a 2006 ruling, which talked about a “significant nexus” between a land tract and a waterway.

EPA’s Response

“EPA (and) the Army Corps of Engineers remain fully committed to ensuring that all people have access to clean, safe water. We will never waver from that responsibility,” said the EPA statement about the upcoming revisions. “The agencies are interpreting ‘waters of the United States’ consistent with the Supreme Court’s decision.”

Both the EPA and the Corps of Engineers have regulatory duties for federal waterways.

Kentucky Joins Band of States Blocking WOTUS

Tue, 25 Apr 2023 12:49:16 GMT

Kentucky joined the band of states blocking the Biden administration’s Waters of the U.S. (WOTUS) definition on Thursday after an appeals court issued a freeze on the rule until May 10—when the court will decide whether it will issue a formal injunction.

Kentucky is the 27th state to put a wall up against the legislation. If the state moves to file an injunction, it will mirror the latest North Dakota ruling issued two weeks ago .

Why are so many state courts allowing a block of the rule?

The Problem with WOTUS

The latest WOTUS definition—put into motion by the Biden administration on March 20—has been met with a wave of backlash from the ag industry for its “overreaching” jurisdiction.

Under the current rule, the following bodies of water are considered WOTUS and therefore subject to federal regulation:

• Traditional navigable waters
• Tributaries that contribute perennial or intermittent flow to such waters
• Certain ditches that meet specific criteria related to flow and function
• Certain lakes and ponds
• Impoundments of otherwise jurisdictional waters
• Wetlands that are adjacent to jurisdictional waters

Related article: What’s Wrong with the Current Waters of the U.S. Rule?

According to stakeholders and legislative officials, like Sen. Mitch McConnell (R-Ky.), the policy will force farmers to navigate a “costly and time-consuming” permit process or bring government penalties. He shared his contempt for the “radical” WOTUS rule in a statement following Kentucky’s block.

“EPA’s expanded definition would classify nearly all wetlands as ‘navigable’ waters and thus subject to federal government interference,” McConnell said. “This would give federal bureaucrats in Washington sweeping control over just about every piece of land that touches a pothole, ditch, or puddle in Kentucky.”

What’s Next?

EPA countered Kentucky’s move, asking the court to make clear that the latest rule does not apply nationwide.

The ongoing WOTUS matter will ultimately be settled in the Supreme Court, with a ruling expected by June.

4 Items EPA Discussed this Week that Will Impact Producers

Thu, 20 Apr 2023 18:36:19 GMT

Michael Regan, EPA administrator, appeared before the House Ag Committee on Wednesday to discuss everything from WOTUS to the farm bill. Here are the highlights that will directly impact producers:

1. Year-Round E15

EPA is not yet ready to issue an emergency declaration to allow E15 fuel to be sold during the summer months as they did in 2022. While Regan said that many of the conditions are still in place that prompted the 2022 emergency waiver, he said EPA staff has not yet brought him enough evidence to issue an emergency waiver.

He cautioned that administrative moves by the Trump administration to allow year-round E15 sales did not survive court challenges. But he said no options are off the table as of yet and that EPA was continuing to work with the Department of Energy and others on the situation.

2. Biodiesel Blending Levels

Proposed 2023, 2024 and 2025 Renewable Fuel Standard volumes for biomass-based diesel and advanced volumes do not match the industry’s current production. Regan explained:

“Let me just say that in 2022 we set the highest volumes ever in EPA’s history. So we’re proud of that and what we plan to do is continue that trajectory. As you know we proposed a rule and we’re in that proposal phase and there aren’t too many things that I can comment during this time of comment but what I can say is that 2023, 2024, and 2025 will continue that positive trajectory.”

According to Regan, his team is taking comments from industry stakeholders and have been offered “a lot” of data that Regan believes will be “reflected in the final rule.”

3. The Future of Biofuels

Rep. David Scott (D-Ga.), asked Regan the role he sees biofuels playing in the future. Last week, EPA announced emission standards for new cars. That announcement led to concerns from the biofuels industry and farmers in regard to the administration’s view on the role biofuels have been playing and can continue to play in reducing emissions and powering our cars and trucks.

Regan was asked what he would you say to our farmers and our domestic biofuels industry – the role he sees biofuels playing in the future. His response:

“Well, I think we see a significant role. It’s called walking and chewing gum at the same time. I think that when you look at the policies of this EPA, and the investments that we’re making in biofuels and advanced biofuels, just by the last RVO volumes we set and the ones we’re anticipating setting, and then the partnership that I have with Secretary Vilsack and Secretary Buttigieg as we look at the role of biofuels with aviation fuels, we see a tremendous market for biofuels that is complimentary to the EV fuels future. And so we think that we can do both – we see a balance here. And in both cases, we’re trying to follow the markets, follow technology, and follow the science as well.”

As for the recent EPA proposal which would tighten tailpipe emissions and force more electric vehicles (EVs) to be used, Regan said the plans do not work against biofuels. EPA is working to implement complimentary policies on that front. “We see a tremendous market for biofuels that is complementary to the EV fuels future,” he said.

4. Waters of the U.S. (WOTUS)

Rep. Don Bacon (R-Neb.) said the Waters of the U.S. (WOTUS) rule on wetlands protections and declared, “Any goodwill the administration has built with farmers and ranchers is gone.”

House Ag Chair G.T. Thompson (R-Pa.) mirrored Bacon’s comments.

“Historically, EPA has over-regulated the agriculture industry,” criticizing agency actions on pesticides, electric vehicles, and WOTUS.

The Supreme Court is expected to rule soon on an Idaho case that would restrict federally recognized wetlands to territory with a direct surface connection to a waterway.

Regan said the EPA issued its WOTUS rule last December in the face of “looming litigation” over not having a regulation. Courts have put on hold the recent Biden/EPA rule in 26 states.

Despite “enduring” 4.5 hours in the committee hearing, Regan shows promise in working more in favor of rural America, according to Thompson. He says Regan called him following the meeting to “emphasize how much he wants to do a better job” of working with the House Ag Committee.

What’s Wrong with the Current Waters of the U.S. Rule?

Thu, 13 Apr 2023 18:26:01 GMT

The latest Waters of the U.S. (WOTUS) definition—put into motion by the Biden administration on March 20—was met with a wave of backlash from the ag industry for its “overreaching” jurisdiction.

That opposition was validated on Wednesday when a U.S. District Court Judge, Daniel Hovland, granted an injunction that blocks enforcement of the WOTUS rule in 24 states.

“An injunction at this early stage can avoid the massive waste of resources and delayed projects in pursuit of permits that may soon be legally irrelevant,” Judge Daniel Hovland wrote in his ruling.

Related story: What Bodies of Water are Considered WOTUS?

Hovland’s decision follows a similar injunction that was filed in Texas on March 20, which effectively blocked WOTUS enforcement in Texas and Idaho. He says the EPA’s final WOTUS rule was premature, as the pending U.S. Supreme Court WOTUS case will settle the dispute in all affected states.

So, what makes EPA’s final WOTUS rule “unlawful” and worthy of an injunction? Ethan Lane, vice president of government affairs at NCBA, says it comes down to bureaucracy.

What’s Wrong with WOTUS?

Under the current rule, the following bodies of water are considered WOTUS and therefore subject to federal regulation:

• Traditional navigable waters
• Tributaries that contribute perennial or intermittent flow to such waters
• Certain ditches that meet specific criteria related to flow and function
• Certain lakes and ponds
• Impoundments of otherwise jurisdictional waters
• Wetlands that are adjacent to jurisdictional waters

Lane says the EPA’s WOTUS “patchwork” in words like “certain lakes and ponds” has carved-out room for discretion. He says this discretion will rob policymakers and landowners of time and money.

“As I understand it, this rule says EPA is going to determine jurisdiction on a case-by-case basis—that just blows me away,” Lane says. “This is never the way you want a bureaucracy to interact with your private businesses.”

Richard Gupton, senior vice president of public policy and counsel at the Ag Retailers Association, echoed Lane.

“Rushing the new rule out only served to increase uncertainty for the ag retail industry while eroding [landowners] trust in the EPA’s deliberations and stakeholder consultations.”

The remedy, according to Lane, is for EPA to define exactly what the land and water “safe harbors” are and remove any room for opinion. And Lane isn’t alone in that thought.

“This isn’t just a philosophical dispute: farmers and ranchers in the remaining states are left with no clear way to determine where federal jurisdiction begins and ends on their own property,” said Zippy Duvall, Farm Bureau president, in a press release . “With the rule now on hold in more than half the country, EPA and the U.S. Army Corps should do the right thing by listening to our legitimate concerns and rewriting the rule to draw a bright line of jurisdiction.”

What Bodies of Water are Considered WOTUS?

Wed, 12 Apr 2023 21:39:49 GMT

The EPA’s new definition of Waters of the U.S. (WOTUS) takes effect Monday. It will be a key topic Wednesday when EPA Administrator Michael Regan appears before the Senate Environment and Public Works Committee.

Naysayers to the Biden administration’s WOTUS approach should take heart because as usual, EPA will take longer than most expect to implement it.

WOTUS Background

Biden’s EPA action would replace the Trump-era WOTUS rule with a new regulation that would expand federal protections for certain bodies of water.

Related story: Ag Groups File Lawsuit to Challenge EPA’s “Vague” New WOTUS Definition

The proposed rule was published in the Federal Register on Sept. 3, 2021, and is known as the “Definition of Waters of the United States” rule. Under the proposed rule, the following bodies of water would be considered WOTUS and therefore subject to federal regulation:

• Traditional navigable waters
• Tributaries that contribute perennial or intermittent flow to such waters
• Certain ditches that meet specific criteria related to flow and function
• Certain lakes and ponds
• Impoundments of otherwise jurisdictional waters
• Wetlands that are adjacent to jurisdictional waters

Related story: EPA Releases New WOTUS Rule, with the Supreme Court Ruling Pending

The proposed rule also seeks to provide more clarity around which waters are not considered WOTUS and therefore not subject to federal regulation. For example, the rule would exclude certain types of ditches, ephemeral streams that only flow in response to precipitation, and groundwater.

The Biden administration has emphasized that the proposed rule is grounded in science and aims to protect public health, support communities and economies, and address climate change. However, the rule is likely to face legal challenges from industry groups and some states and as noted, the real “clarity” will come by June via the Supreme Court ruling.

Things to Consider in the WOTUS Rule

Don’t waste your time following congressional efforts to overturn the WOTUS rule under the Congressional Review Act (CRA).

Even though it passed the House, and even should it clear the Senate (by no means a certainty), President Joe Biden has already said he would veto it and the votes to override are lacking.

WOTUS Rule Frozen in Two States, But Unimpaired in 48

Tue, 21 Mar 2023 13:50:48 GMT

A federal judge in Texas put WOTUS on hold in two states over the weekend but denied a concentrated effort by industry groups to stop the rule nationwide. The controversial Waters of the United States (WOTUS) rule takes effect today (Mar. 20, 2023).

Judge Jeffrey Brown ruled in favor of Texas and Idaho while denying a second lawsuit that argued the EPA and the Army Corps of engineers should wait for the upcoming Sackett v. EPA decision from the U.S. Supreme Court before implementing the new rules.

In a statement, the National Cattlemen’s Beef Association (NCBA) expressed strong disappointment by the decision by the U.S. District Court in the Southern District of Texas to deny a nationwide preliminary injunction that would have halted WOTUS.

“This latest WOTUS rule will place more burdens on family farms and ranches, drive up costs, and prevent cattle producers like me from making investments in our land,” said NCBA President Todd Wilkinson, a South Dakota cattle producer. “While we appreciate the court’s injunction of the rule in Texas and Idaho, we are strongly disappointed in the decision to keep this WOTUS rule in place in 48 states and I am proud of NCBA’s efforts to continue the fight against this rule.”

The Environmental Protect Agency finalized the latest WOTUS rule at the end of 2022. NCBA and its litigation partners filed a lawsuit seeking to overturn the rule on January 18, 2023. NCBA sought a nationwide preliminary injunction, which would have prevented the federal government from implementing the WOTUS rule until the entire case is decided. Instead, the court granted a limited injunction in only two states—Texas and Idaho.

“The court’s decision to keep the Biden administration’s WOTUS rule in place is concerning and irresponsible,” said NCBA Chief Counsel Mary-Thomas Hart. “Without a nationwide injunction, the rule takes full legal effect today and will become an immediate burden on our nation’s cattle producers. NCBA will continue efforts to defend our nation’s farmers and ranchers.”

The Supreme Court’s upcoming Sackett decision could potentially limit the reach of the Clean Water Act, in conflict with the Biden WOTUS rule. That decision is expected by early summer.

Related:

Who Defines WOTUS? It Might Come Down to the President or Supreme Court

Who Defines WOTUS? It Might Come Down to the President or Supreme Court

Thu, 16 Mar 2023 20:48:19 GMT

Efforts to use the Congressional Review Act (CRA) to repeal the Biden administration’s Waters of the U.S. (WOTUS) rule could end up having unintended consequences, according to Radhika Fox, EPA assistant administrator for water. Fox told the Senate Environment and Public Works Committee it could remove protections that were built into the rule.

EPA’s Latest WOTUS Update

The EPA published its final definition of WOTUS on Dec. 30, which gives federal protection to large waterways, such as interstate rivers and streams, and adjacent wetlands.

“The EPA’s new rule doubles down on the significant nexus test, which is this unworkable test for jurisdiction of when the federal government regulates farms and ranches,” says Travis Cushman, Farm Bureau’s deputy general counsel.

The Supreme Court is evaluating a decision on another WOTUS case that could significantly impact WOTUS rulemaking, which is set to be ruled on later this year.

So, why did EPA move forward with the rule change now? Ted McKinney, National Association of State Departments of Ag (NASDA) CEO, says his team has their own theory.

“It’s rare for an organization to be that direct in state-mandated oversight in streams. Because of that rarity, we, at NASDA, believe it’s an overreach that’s political in nature—it isn’t right,” McKinney says.

While some can see merit in a lawsuit and repeal, Fox says there are repercussions that need to be considered.

WOTUS Repeal Repercussions

If the repeal effort is successful, Fox warned it would put the pre-2015 definition of WOTUS back into effect without some of the updates the Biden administration included in its latest definition.

Fox said it would remove the “significant nexus standard” and would remove exemptions for artificial ponds for previously converted cropland.

The CRA effort also would bar EPA from pursuing future regs that are substantially similar to the one that would be removed by the action.

Supreme Court Tees Up on WOTUS

The House last week has already passed (227-198) its WOTUS rule resolution and it’s up for a Senate vote. The White House has pledged a veto of the measure, should it reach President Joe Biden’s desk.

The final say on this matter will rest with the Supreme Court, whose decision is awaited.

What You Might Not Know

CRA’s language against the regulation is prescribed and brief. It essentially says Congress disapproves the regulation.

Of course, the Biden administration will want to find arguments to keep Members from voting for the resolution but, really, all the administration is saying is the regulation would no longer be in place. The administration fears it could pass and the president would need to veto another bipartisan bill.

Ag Groups File Lawsuit to Challenge EPA's "Vague" New WOTUS Definition

Fri, 20 Jan 2023 22:27:35 GMT

A group of 17 organizations are challenging the new Waters of the U.S. (WOTUS) definition through a lawsuit against the EPA, filed Thursday.

“The EPA’s new rule doubles down on the significant nexus test, which is this unworkable test for jurisdiction of when the federal government regulates farms and ranches,” says Travis Cushman, Farm Bureau’s deputy general counsel. “We filed our lawsuit to stop it.”

The lawsuit comes as the EPA published its final definition of WOTUS on Dec. 30, which gives federal protection to large waterways, such as interstate rivers and streams, and adjacent wetlands.

Ag Policy Whiplash

In a press release on the lawsuit, Farm Bureau President Zippy Duvall says the rule is “vague” and puts farmers and ranchers in a position where they will have to hire lawyers and consultants to establish the boundaries of farming, which “isn’t what clean water regulations were intended to do.”

Ethan Lane, NCBA’s vice president of government affairs, echoed Farm Bureau, saying the “unjust” ruling hits too close to home.

“I’m from the state of Arizona. The ‘significant nexus’ test that determines a dry stream bed from some kind of runoff area is describing my entire home state, depending on the definition you use,” he says. “We need clarity.”

Why Rule on WOTUS Now?

The new definition and lawsuit come as the Supreme Court is evaluating a decision on another WOTUS case that could significantly impact WOTUS rulemaking, which is set to be ruled on later this year.

Policy and Payments: What Producers Can Expect in 2023

Thu, 05 Jan 2023 14:00:38 GMT

The calendar flip to 2023 signals a new Congress and, this year, a new farm bill. With that comes unpredictability. Jim Wiesemeyer, Pro Farmer policy analyst, lays out what could be ahead for ag policy in coming months.

Passing a Farm Bill

Rep. Glenn Thompson (R-Pa.), the new House Ag Committee Chairman, intends to hit the ground running on the farm bill as early as next week, with the first farm bill hearing taking place in his home state of Pennsylvania on Saturday.

“I think now the odds we could get a new farm bill this year because the sensitive issues such as climate change and food stamps weren’t totally settled in the omnibus spending bill ,” Wiesemeyer says.

Upon his election, Thompson said the committee will keep it’s “foot on the gas” to deliver a farm bill that will “prioritize” the needs of the farmers, ranchers and foresters.

The committee has six months to make headway on farm bill negotiations before Congressional recess starts in June.

Pandemic Assistance Programs Continue

The Office of Management and Budget (OMB) will also be busy aiding ag in 2023, as they formulate a plan to implement Phase Two of Emergency Relief Payments (ERP) .

Each Monday, the OMB releases an announcement to showcase how much funding has been dispersed through the phase. Phase Two will likely run on the same process, but have different operating components, according to Wiesemeyer.

“Farm groups still tell me, from the last thing they’ve heard from USDA, they won’t like how Phase Two operates,” he says. “We’ll see how this all plays out, pending any last-minute changes from USDA.”

According to Wiesemeyer, Phase One dispersal was slow and rocky, but the funding amount was plentiful.

Lock-In WOTUS

An official definition of Waters of the U.S. (WOTUS) is also on the horizon in 2023, following an interim definition proposed by the EPA last week. However, the final ruling might not be what some had hoped.

Wiesemeyer says some analysts feel, following the interim proposal, the government now has more room to interpret the court’s WOTUS decision. He sees how this could be the government’s strategy.

“A number of lawmakers did not want the EPA to come out with any ruling on WOTUS, no matter if it was interim or not,” Wiesemeyer says. “But you know lawyers—once they think they have more flexibility, they’ll use it.”

More on policy :

4 Ways to Advocate for Ag in the New Farm Bill
EPA Releases New WOTUS Rule, with the Supreme Court Ruling Pending

EPA Releases New WOTUS Rule, with the Supreme Court Ruling Pending

Fri, 30 Dec 2022 19:01:35 GMT

As expected, the Environmental Protection Agency (EPA) today issued a new rule defining Waters of the United States (WOTUS) under the Clean Water Act .

Also as expected, the definition maintains longstanding exemptions for farming activities but trims an exclusion for prior converted cropland that had been in the Trump administration’s Navigable Waters Protection Rule .

The 514-page rule was released by EPA and the Army Corps of Engineers.

“The final rule restores essential water protections that were in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters,” the two agencies say in a joint news release. “As a result, this action will strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies, and downstream communities.

The rule takes effect 60 days after it is formally published in the Federal Register.

A Page from WOTUS History Books

The rule largely revives a definition of WOTUS released during the Reagan-era, updated to accommodate limits the Supreme Court has placed on federal jurisdiction during the intervening 36 years.

The latest definition is an effort by the Biden administration to find a “durable” solution for protecting wetlands and streams — an issue that has been hotly debated since the Clean Water Act’s passage in 1972.

Through the years, the question has triggered regulatory back-and-forth, intense lobbying, and legal and political brawls among developers and agricultural and environmental groups.

The Terms that Matter to Ag

The new rule would give federal protection to large waterways, like interstate rivers and streams and wetlands that are adjacent to them. Wetlands would be considered adjacent if they are connected to those larger waterways with “relatively permanent” surface water connections, or if they have a “significant” hydrologic or ecological “nexus” to those protected tributaries.

Those terms are rooted in a 2006 Supreme Court case, Rapanos v. United States, which splintered the justices 4-1-4 and resulted in two competing tests to determine if property is beholden to Clean Water Act permitting requirement

The agencies issued a “joint coordination memo” with USDA and said they would “enhance consideration of regional differences in [WOTUS] implementation” through training and continued development of methods to assess streamflows in the Great Plains and Western Mountains; Northeast and Southeast; and the Arid West.

EPA and the Corps also issued a separate joint coordination memo “to ensure the accuracy and consistency of jurisdictional determinations” under the final rule.

Legal Backlash En Route

Some predict a legal backlash from farmers, developers and businesses that will argue the regulation is inconsistent with the Clean Water Act.

As we noted previously, the Supreme Court is reviewing EPA’s jurisdiction under the Clean Water Act, so this will not be the final WOTUS definition. The coming one is the definition that will be in place until the Biden administration/EPA proposes a brand new one based on their field hearings and reflects the still-awaited Supreme Court ruling.

This is the final rule that OMB completed their review of on Nov 30. The new definition has not even been proposed yet.

More on ag policy :

Water Resources Bill Reauthorized with a Component that Will Impact Producers
Conservation Nightmare as Landowner Fights Feds Over Property Regulations and Phantom Snake

Expect New WOTUS Testing Rules by the End of 2022, According to Government Lawyer

Wed, 05 Oct 2022 21:56:44 GMT

Lawyers yesterday tried to challenge the scope of the Clean Water Act, which could limit how much the EPA can protect U.S. waterways.

Several justices appeared ready to reject a key argument put forward by an Idaho couple behind the lawsuit. And the court’s liberals sought a compromise that would retain the government’s authority to regulate wetlands adjacent to lakes, rivers and other waterways.

The case stems from a 2007 property dispute, in which Idaho landowners Michael and Chantell Sackett were told they needed a federal permit to build a home on land they owned because it supposedly contained regulated wetlands.

What’s at Stake

If the court sides with the Idaho property owners, environmental advocates say about half of all wetlands and roughly 60% of streams would no longer be federally protected.

“This case is going to be important for wetlands throughout the country, and we have to get it right,” Justice Brett Kavanaugh said during the nearly two-hour argument on the opening day of the court’s term.

SCOTUS last term restricted the EPA’s authority to curb emissions from power plants.

In the Heat of the Argument

Justices Neil Gorsuch and Samuel Alito Jr. expressed the most skepticism about how broadly the government defines wetlands subject to regulation, offering targeted questions for the government’s lawyer, Brian H. Fletcher.

Gorsuch asked, “How does any reasonable person know … whether or not their land” is covered? Is the property subject to regulation if it is located three miles or two miles from waters subject to federal jurisdiction. Fletcher responded that there are not “bright-line rules,” but limits and government manuals that explain the process. Gorsuch then asked, “So, if the federal government doesn’t know, how is a person subject to criminal time in federal prison supposed to know?”

Justice Ketanji Brown Jackson pushed back against suggestions that the regulations were unfair to the Sacketts or would likely result in criminal liability.

“Shouldn’t they have gathered information about the property prior to purchasing?” Jackson asked the Sacketts’ attorney. “You say the question is which wetlands are covered, which I agree with,” she said. “But I guess my question is, why would Congress draw the coverage line between abutting wetlands and neighboring wetlands when the objective of the statute is to ensure the chemical, physical and biological integrity of the nation’s waters?”

WOTUS Boundaries

A key question in the case, Sackett v. Environmental Protection Agency, is how to determine how far from the water’s edge the Clean Water Act applies.

The court failed to reach consensus in a 2006 case, Rapanos v. United States. The 9th Circuit relied on the test put forward by Justice Anthony Kennedy, who provided the deciding vote in that case and said the wetland must have a “significant nexus” to regulated waters. Kennedy, now retired, watched the argument from the front row of the courtroom on Monday, the Washington Post reported.

The Sacketts’ attorney Damien M. Schiff asked the court to embrace the narrow interpretation proposed by Justice Antonin Scalia, the late conservative. Scalia’s definition limits regulation to wetlands with a direct “continuous surface connection” to “navigable waters.” Schiff said a wetland can be regulated only “to the extent that it blends into and thus becomes indistinguishable from an abutting water” and that the physical connection is essential.

“I’m not sure that’s right,” Roberts said. “You would readily say that a train station is adjacent to the tracks even though it’s not touching the tracks.”

Kavanaugh noted that presidents in both political parties had consistently interpreted the law to give the government jurisdiction over wetlands separated from water by dunes, berms and other barriers.

“Why did seven straight administrations not agree with you?” he asked Schiff.

New WOTUS Rules By Year-End

Justices Elena Kagan and Sonia Sotomayor pressed lawyers on both sides about the possibility of a new test for figuring out which wetlands are covered.

“As you can probably tell, some of my colleagues are dubious that this is a precise enough definition of adjacency to survive,” Sotomayor told the government’s lawyer. “Is there another test that could be more precise and less open-ended?”

By the end of the year, the Biden administration is expected to issue new rules that Fletcher told the court will “provide greater clarity to the regulated public on all parts of the test.”

Bottom line

While the court did not signal a clear outcome during its questioning, the current court has a history of looking skeptically at the federal government’s claim of regulatory authority over the environment when its powers are not clearly defined by law.

The three most conservative justices seemed to want to pare back the government’s environmental authority, while the court’s three more liberal members appeared to favor an expansive view. Some of the other justices sent mixed signals.

More on WOTUS:

Embattled Waters of the U.S. to be Redefined for Agriculture – Again
5 Conservation Needs to be Met in Farm Bill 2023
WOTUS Roundtable Reveals New Rule Pushes Definition ‘Back to Square One’, says NCBA

Supreme Court to Hear WOTUS Arguments on Monday

Mon, 03 Oct 2022 12:57:24 GMT

Monday marks the first day of the Supreme Court’s new term, and the justices will hear oral arguments Monday morning in a closely watched challenge to the Clean Water Act (CWA), passed in 1972 to protect all Waters of the United States (WOTUS) — including streams, rivers, lakes and wetlands — from harmful pollution.

The Issue

Business groups and home builders argue that legal confusion over the definition of WOTUS has created regulatory chaos for businesses and property owners.

“Without clear guidance from this Court, the Chamber’s members will continue to endure an expensive, vague, and time-consuming process whenever they need to determine whether a project or activity will impact waters subject to federal jurisdiction,” the U.S. Chamber of Commerce wrote in a brief.

Reason for the Case

The Supreme Court ruled in June that the Environmental Protection Agency (EPA) overstepped its authority under the Clean Air Act to slash planet-warming emissions from power plants.

How it Started

The case, Sackett v. EPA, centers on a long-running dispute involving an Idaho couple named Chantell and Michael Sackett. Their legal battle began in 2007, when they tried to build a home on their land near Idaho’s Priest Lake.

EPA said the property contained a wetland, and that the couple needed to obtain a CWA permit or face heavy fines. Their land contains no body of water, and the law authorizes EPA to regulate only “navigable waters” in interstate commerce.

EPA still ordered construction work halted and threatened huge penalties if the Sacketts didn’t obtain a federal permit, which typically requires more than two years and $250,000 in consulting costs.

EPA’s Argument

The Sacketts’ lot was connected to a wetland though it was separated by a 30-foot paved road, and that wetland was connected to a man-made ditch that was connected to a non-navigable creek that was connected to Priest Lake, which was navigable.

The Sacketts, represented by the conservative Pacific Legal Foundation, have won at the Supreme Court before. They want the justices to significantly narrow the definition of WOTUS so that their property — and others like it — would not be subject to the CWA.

WOTUS Outlook

Damien Schiff, a senior attorney at the Pacific Legal Foundation who will argue the case on Monday, said he is “quietly optimistic” that the Sacketts will prevail. He noted that Chief Justice John G. Roberts Jr. signed Scalia’s opinion in Rapanos, while Justice Neil Gorsuch signaled in the Clean Air Act case that he is “skeptical of broad EPA interpretations of statutes.”

Jon Devine, who leads the Natural Resources Defense Council’s federal water policy team, said the adoption of Scalia’s narrow test could remove CWA protections for roughly 19% of streams and 51% of wetlands in the country.

“That would be catastrophic,” he said, “for the water quality purposes of the act.”

Oral arguments in Sackett v. EPA begin at 10 a.m. ET on Monday, both in person and online. The National Pork Producer Council’s Sackett brief can be found here .

More on WOTUS:

Embattled Waters of the U.S. to be Redefined for Agriculture – Again
5 Conservation Needs to be Met in Farm Bill 2023
WOTUS Roundtable Reveals New Rule Pushes Definition ‘Back to Square One’, says NCBA