WOTUS Rule – A Power Play with Powerful Agricultural Implications

December 10, 2015

The “Waters of the U.S.” or “WOTUS” rule has been a hot button topic from inception. That didn’t change in early October when the saga took yet another twist. The Sixth U.S. Circuit Court of Appeals blocked implementation of the controversial rule until legal action can be resolved regarding its language and expansiveness. This decision blocks the rule in 37 states; the other 13 states had already been held up with a court decision in North Dakota on August 27.

In essence, the “WOTUS” rule is designed to allow the EPA and Army Core of Engineers to regulate certain waters under the Clean Water Act. From there, it gets murky pretty quickly. Land owners and agencies that represent them, like mine, claim the rule is beyond vague and could usher in a period of regulatory hell wherein the EPA could conceivably regulate almost any water, right down to the ditch in your backyard. The EPA doesn’t seem to understand the objections, arguing the rule is clear and rational. It is steadfast and unapologetic about its stance.

But, to those of us in ag-related industries who are watching his national conundrum unfold, a flow chart or legal family tree would be helpful! This act takes on a different meaning depending on your geographic location and relationship with water. For the farmers and land owners I work with in Illinois, a tension abounds. We are corn and soybean growers. Water is the lifeblood of our crop and subsequently the main ingredient in our livelihood. We just came off a historically wet year, one in which many Central Illinois counties saw record rain fall. The best yields were harvested from farmland capable of handling and draining excess water, whether through drainage tile, waterways or other remedies. No one wants to see a governmental ruling hamstringing them when it comes to managing this vital resource. It goes far beyond Illinois. What about those farmers and ranchers out west who are dependent on irrigation? What about the next time we have a largescale drought? What about the smaller specialty farms darted all over the country?

What happens next is hard to guess and, quite honestly, it might be totally different from when I am writing this in early October to publication. This recent block doesn’t completely negate this rule, only buys time for a hopeful clearing of the air. Congress and State legislatures could and should play a pivotal role in what happens next. Will active representation on a state level stand up or will they let the courts sort it out? Is this law even lawful?

It is clear that neither side is going to wake up one morning and see the other’s point in totality. Both sides obviously realize that water is one of the earth’s most precious resources and therefore needs to be managed intentionally and ethically. It is the difference in ideologies and methodologies that leave an aura of distrust. I don’t know how this will play out, but I know it is vitally important to America’s ability to produce the crops needed to meet domestic and international demand.

Written by Luke Worrell for the Illinois Farm & Land Chapter of the REALTORS® Land Institute’s November 2015 newsletter