TOPEKA, KAN. (RFD NEWS) — Few federal environmental regulations have created more uncertainty for rural landowners than the definition of Waters of the United States, or WOTUS, under the Clean Water Act.
Roger McEowen with the Washburn School of Law joined Market Day Report to discuss the latest development and what it could mean for farmers and ranchers.
Supreme Court Decision Sets New Boundary
In his interview with RFD News, McEowen said the U.S. Supreme Court’s 2023 decision in Sackett v. EPA was a major turning point for WOTUS.
The Court rejected the broader significant nexus approach and said adjacent wetlands generally must have a continuous surface connection to a qualifying water body, making it difficult to determine where the water ends and the wetland begins.
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For agriculture, McEowen said that distinction matters because farms can have depressions, drainage features and wetlands that become wet following a storm and then dry several weeks later.
He said the decision limited federal jurisdiction and gave landowners a clearer boundary.
Agencies Seek Public Comment
On September 4, the EPA and Army Corps released a supplemental proposal seeking additional public comments on alternatives involving perennial waters, relatively permanent waters and the continuous surface connection requirement.
McEowen said the agencies are working to further define the standards established by the Supreme Court.
“This is agriculture’s opportunity to contribute to having a voice here,” McEowen said.
The underlying 2025 proposal would also exclude a number of features important to agriculture, including certain farm and roadside ditches and groundwater, including groundwater that moves through field tile drainage.
Wet Season Definition Remains Unresolved
One of the biggest unresolved issues is how the agencies will define and apply a wet-season standard.
McEowen encouraged farmers to watch that definition closely, noting that a standard that works in a wetter part of the country could have a different effect on a Kansas pasture, a Nebraska crop field or a Wyoming drainage system.
“The key question, I think, is whether features actually are relatively permanent water rather than simply carrying water after a rainfall event,” he said.
He said farmers in the Plains and West should pay close attention to the final definitions and how the agencies apply them.
Potential Exclusions Could Affect Farm Water Management
McEowen said the proposed exclusions for certain roadside ditches, groundwater and subsurface agricultural drainage could be significant for farmers who rely on those systems.
The proposal would exclude ditches constructed or excavated entirely in dry land, even if they carry relatively permanent flows. It would also exclude groundwater, including groundwater moving through subsurface agricultural drainage tile.
McEowen said that could be particularly significant in states such as Iowa.
He also said farmers should not automatically create federal jurisdiction simply by building a drainage ditch or efficiently managing water on the farm.
The proposed exclusions could provide more certainty for ordinary agricultural water-management practices.
What Farmers Need From a Durable WOTUS Rule
After more than a decade of changing rules and court decisions, McEowen said a durable WOTUS rule needs to give farmers a clear line they can understand without hiring a lawyer or consultant every time they want to work on their property.
That boundary needs to be consistent with the Clean Water Act and the Supreme Court’s 2023 Sackett decision, while recognizing that state and local governments may still regulate waters outside federal jurisdiction.
“Farmers need to know where federal jurisdiction ends and private property begins,” McEowen said.
McEowen said he is cautiously optimistic about the latest effort, particularly if agriculture gets involved and makes its voice heard during the comment process.
READ MORE: Firm to Farm by Roger McEowen
Read more of Roger McEowen’s thoughts on agricultural law and policy issues that matter to farmers and ranchers on his RFD Business Blog, Firm to Farm.
