The state’s largest farm and ranch organization submitted comments to the U.S. Environmental Protection Agency (EPA) on the agency’s plan to write a new Waters of the U.S. (WOTUS) rule.

Texas Farm Bureau (TFB) recommended the EPA and Army Corps of Engineers withdraw the proposed rule, citing jurisdictional issues and lack of stakeholder engagement.

“Texas is an extremely diverse state, and conservation strategies vary greatly,” TFB said in its comments. “For generations, Texas farmers and ranchers have improved their lands to better utilize available resources, minimize erosion and maximize production efficiency.”

TFB noted the regulation of low spots on farmlands and pastures as jurisdictional “waters” means that any activity on those lands that moves dirt or applies any product to that land could be subject to regulation.

“Everyday activities such as plowing, planting, or fence building in or near ephemeral drainages, ditches or low spots could trigger the Clean Water Act’s (CWA) harsh civil or even criminal penalties unless a permit is obtained,” TFB said. “The tens of thousands of additional costs for federal permitting of ordinary farming activities, however, is beyond the means of many family or small business farming or ranching owners. Even those farmers and ranchers who can afford it should not be forced to wait months, or even years, for a federal permit to plow, plant, fertilize or carry out any of the other ordinary farming and ranching activities on their lands.”

The organization, which has been engaged on the WOTUS rule-making proceedings for several years, also expressed concerns with the agencies’ “significant nexus test”  that would be a radical expansion of the agencies’ jurisdiction as compared with the NWPR.

“Farmers and ranchers across Texas are disappointed by the agencies’ proposed rule,” TFB said. “We feel strongly that the Navigable Waters Protection Rule (NWPR) was a clear, defensible rule that appropriately balanced the objective, goals and politics of the Clean Water Act. The agencies should keep the NWPR in place, rather than revert to definitions of WOTUS that test the limits of federal authority under the Commerce Clause and are not necessary to protect the nation’s water resources.”

TFB’s concerns with the new proposed rule include:

  • It will profoundly affect everyday farming and ranching activities through increased permitting requirements;
  • Unclear rules could lead to potentially unlimited jurisdiction, including the unconstitutionally vague significant nexus test;
  • The expansion of federal jurisdiction exceeds limitations set by Congress;
  • The proposed rule exceeds the scope of the federal government’s authority.

Given the Supreme Court’s recent decision to revisit the agencies’ proper scope of jurisdiction under the CWA, TFB believes the agencies should pause the rule making until after the court rules in Sackkett v. Environmental Protection Agency.

The American Farm Bureau Federation also submitted comments asking the agencies to withdraw the proposed WOTUS rule.