By Jessica Domel
Field Editor

Farmers pray for rain. They pray for good yields and for their family and friends. But this year, they’re adding something else to their list–the ability to do their jobs without threat of punishment from a government agency.

San Patricio County farmer John Barrett has been farming much of his life. He grows both irrigated and non-irrigated cotton and grain sorghum in Edroy.

For years, his concerns were whether or not the crop would succeed and providing for his family. Now, it’s dealing with the new Waters of the U.S. (WOTUS) rule under the Environmental Protection Agency’s (EPA) Clean Water Act (CWA).

I’ve got to rely on ditches to keep the water off my fields for drainage, Barrett said. They (the ditches) are not navigable.

Before the EPA released WOTUS, Barrett could farm freely as long as he didn’t harm a navigable stream or body of water.

Now that EPA’s WOTUS is in effect in Texas, that’s all changed.

Through WOTUS, EPA claims regulatory authority over areas of land that sometimes hold water like streams, ditches and low-lying areas by claiming the area would eventually connect to a larger waterway.

With regulatory authority, EPA can threaten fines for changing an area it considers part of WOTUS–even if it doesn’t normally hold water.

They could, effectively, decide who farms and who doesn’t through the use of permits.

We farmers, unless we’re a feedlot or dairy, are not used to having to get permits, Barrett said. A lot of times, row crop farmers especially, have to do things on very short notice. If you would have to go ask the EPA for permission. ahead of time to conduct a routine farming operation, you could be putting your whole livelihood in jeopardy.

Barrett has worked with Texas Farm Bureau and the American Farm Bureau Federation on water-related issues since the mid ’90s. He’s even served as a panelist for EPA in several places to discuss water quality standards.

He feels the release of WOTUS is EPA’s way of regulating non-source point sources like farmers.

It’s a power grab, Barrett said.

Earlier this month, a North Dakota judge issued an injunction against EPA’s rule. But EPA claims the injunction is only effective in the 13 states included in that lawsuit.

It’s hard to understand how this is going to work when this national rule will only be implemented in 37 states, said Texas Farm Bureau Director of Government Affairs Regan Beck. It’s easy to see where there’s going to be complications in administering this rule in one state and not another.

Texas was not part of the suit, which means WOTUS went into effect in Texas Friday, Aug. 28.

Texas Attorney General Ken Paxton has challenged the WOTUS ruling. Texas Farm Bureau, American Farm Bureau Federation and the Matagorda County Farm Bureau have filed suit in a federal district court in Galveston to oppose the rule joined by a broad coalition of industries affected by the rule.

Lawsuits have been filed in a number of federal district courts and federal appellant courts across the U.S.

All of the federal appellant court cases have been consolidated into the 6th Circuit in Cincinnati, Ohio. The justices there will decide who has the original jurisdiction in the cases–either the District Courts or the Appeals Courts.

Following the injunction in North Dakota Aug. 27, White House spokesperson Josh Earnest said in a briefing that the administration strongly disagrees with this ruling. Earnest noted that the U.S. Justice Department is considering its options.

In the meantime, Texas Farm Bureau continues to push back on behalf of its over 500,000 member families. The organization is fighting to keep the case in Texas as other similar cases are consolidated across the U.S.