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The Navigable Waters Protection rule, which replaces the controversial 2015 Waters of the U.S. (WOTUS) rule, went into effect in late June, and the result is much better for agriculture.

It would be a mistake, though, to consider the issue settled, said Jeff Cummins, INFB’s associate director of policy engagement.

“What people should understand is that, to a certain degree, this has been a moving target since the Clean Water Act was first passed in 1972. The 2015 rule was a gross overreach, but there’s been an ongoing struggle to find a balance between competing interests ever since the 1970s,” Cummins explained. 

“It’s an almost 50-year battle that’s not going to stop because it’s always being litigated,” he added.

The Navigable Waters Protection rule, which was proposed by the Trump administration in 2018, was allowed to go into effect after a judge in California denied a request to block the rule.

It is an improvement on WOTUS, according to both Cummins and Don Parrish, the American Farm Bureau Federation’s regulatory affairs senior director, because it draws clearer lines between what lands are subject to federal regulation and what lands are under state jurisdiction. It also clarifies that usually dry areas should no longer be considered federally regulated waters.

The new rule provides six clear categories of waters of the United States:

• Traditional navigable waters.
• Tributaries.
• Certain ditches.
• Certain lakes and ponds.
• Adjacent wetlands.
• Impoundments of waters of the United States.

“There are a number of exceptions – the rule takes up 93 pages in the Federal Register – but what it tries to get right is that it’s very specific about what’s in and what’s out of the federal government’s jurisdiction,” Cummins explained.

“Implementation is where the rubber meets the road,” Parrish said. “That means that we still have work to do.”