Montana Agriculture takes a stance on Waters of the United States

Late last year the EPA changed the language of The Waters of the US, better known as WOTUS. This is what they said:

The final "Revised Definition of 'Waters of the United States'" rule. On January 18, 2023, the rule was published in the Federal Register ; the rule will be effective on March 20, 2023 . The agencies’ final rule establishes a clear and reasonable definition of “waters of the United States” and reduces the uncertainty from constantly changing regulatory definitions that has harmed communities and our nation’s waters.

The previous ruling under the Trump administration was generally accepted from most agricultural groups and producers.  There is current litigation in front of the Supreme Court of the US, Sackett vs. EPA 

I visited with Montana’s two largest Ag Organizations about the current EPA directive and how they feel about it.

Here is the conversation with Cyndi Johnson, President of Montana Farm Bureau Federation:

Cyndi: The waters of the US rule, the clean water act that was put in place when Trump was still the president, gave us some clarity, and we were really pleased by that, because then we felt that we had some definitions that we could live with. We understood the rules. We understood exactly what navigable waters were. We understood when and how and where we had to have federal permitting in order to change the way we used our land. Now with this new rule that was signed off on the end of December, all of that clarity is gone. And so we're now back to square one where the Obama administration had us, but we've gone backwards a long ways. And so now there is no clarity and there is no assurance that you can interpret the rules without using a legal team. So it's a frustration for all of us who use our land.

So far, the Supreme Court has been on the side of the producers and on maintaining the previous rules, but until they rule once again, where are we at right now?

Cyndi: The new rule actually did exclude prior converted crop land and gave us some exemptions for irrigation ditches and stock ponds. And prior converted cropland was crop land that has been in use, but it was converted prior to the end of 1985. And that exclusion for prior converted cropland goes away if you no longer use it for agriculture. But so long as you use it for agriculture, the exclusion remains in place. And we're waiting for a ruling on the Sacket case because that gives clarity to the definition of what a wetlands really is. The Sackets are a couple in Idaho. They purchased a piece of property in 2004 or 2005, but poor folks there, they bought a piece of land. The property is between two other residential properties. It has a road on the north and south of it, and it has residential properties on the east and west of it. And the EPA declared that it was a wetland because it's close to Priest Lake, but it's surrounded by residential properties. And so the first lawsuit came into being because they were told if they didn't remove the gravel that they put in to create a driveway into their property that they'd have to pay a fine of $32,000 a day. That was the first lawsuit, and I think they were successful there. Now they're back in court again, and I think all of the arguments were heard by the first part of December, and we're just waiting for the results that will give us a definition of wetlands. But the American Farm Bureau joined with 17 or 18 other different organizations, and we filed a lawsuit against the EPA for signing off on this new rule because of the ambiguity of the rules. They (AFBF) joined with oil and gas industry folks, they joined with infrastructure industry folks, trades and builders and contractors, realtors, Cattlemen's Beef association, corn growers, housing councils, pork producers. I think there's even a poultry and egg association and public lands council. So there's just a long list of folks that have joined with American Farm Bureau to take EPA back to court.

I also visited with Walter Schweitzer, President of Montana Farmers Union.  I asked him what his position is on the current situation:

Walter:  This whole Waters of USA, the legal battle started under the Bush administration. It was a developer in Idaho near Priest Lake, Idaho that was wanting to develop their property, and their permit was denied, and they challenged it to the Supreme Court level. And it has been an ongoing battle since the Supreme Court put it back in the EPA's field to come up with a uniform plan to protect the waters of the USA. And they proposed another plan that was then challenged again in the court system. I think under every administration since Bush has had a proposal that the Supreme Court has not accepted. And so it will be interesting to see. I really wish that the Supreme Court would just say what it is that it needs to be so we can be done. And we have some predictability here, but I'm afraid that they're going to push back on the last proposal and then it'll be up to the current EPA to come up with a new plan. I would like to see it, with the USDA involved in it as well because the Waters of the USA, the farmer’s agriculture, has a huge invested interest in our water as well as the families of this country.

The people that are actually affected by it should be part of the discussion. My fear is, and I'll get your opinion on it, is that you almost have to have an attorney on staff on every single farm or ranch in order to make sure you're following the law. What is your opinion on that?

Walter: Well, for the most part, under the last few proposals that have been made since the Bush administration, the farmers and ranchers in Montana were not impacted that much. We don't have a lot of prairie potholes in Montana, and we don't have a lot of CAFOs in Montana. It takes a pretty damn big feed lot to be considered a CAFO (cattle animal feeding operation, I think is what it stands for organization). Because of corporate consolidation and concentration, we've lost the feeding industry here in Montana. So we just don't have very many big feed lots anymore.

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