The American Farm Bureau Federation and other members of an agricultural coalition are asking the Biden administration to withdraw its proposed rule to redefine “waters of the U.S.” under the Clean Water Act, citing jurisdictional issues and a lack of stakeholder engagement.

In comments to the Environmental Protection Agency and the U.S. Army Corps of Engineers, the Farm Bureau — along with 21 other agriculture organizations in the Waters Advocacy Coalition — said the proposed rule would profoundly affect everyday farming and ranching activities.

“Given the abundance of water features on farm and ranch lands, an expansive definition of ‘waters of the United States’ could lead to substantially increased permitting requirements,” they said.

Considering drains, ditches, stock ponds and other low spots on farmland and pasture as jurisdictional “waters” opens up the potential for regulation of activities on those lands that move dirt or apply product to the land, they said.

“Many family and small business farm and ranch owners can ill afford the tens of thousands of dollars in additional costs for federal permitting of ordinary farm activities,” they said.

In addition to the costs, producers could wait months or years for a federal permit to plow, plant, fertilize or carry out any ordinary activity on their land, they said.

“Yet this is exactly what could occur should the agencies finalize their proposal,” they said.

The proposed rule would thrust farmers and ranchers back into the world of uncertainty and inconsistency they experienced under the (Obama administration’s) 2015 rule, they said.

“While the 2015 rule purported to exclude puddles, rills, swales and some ditches, those exclusions were effectively meaningless because the broader definitions of included features such as tributaries and adjacent ‘waters’ swallowed the exclusions,” they said.

The agencies’ aggregation policy potentially allows them to assert jurisdiction over a sometimes-wet feature, which taken together with other sometimes-wet features in the region has what the agencies consider a “significant nexus” on a “foundational water,” they said.

A jurisdictional determination would put many producers in an untenable position given the costs of consultants, engineers, permit applications, mitigation and compliance, they said.

In addition, the agencies’ proposed approach of case-by-case analysis is setting up a system of arbitrary decision-making, they said.

“Put plainly, we are disappointed by the proposed rule. The Navigable Waters Protection Rule was a clear, defensible rule that appropriately balanced the objectives, goals and policies of the Clean Water Act,” they said.

The agricultural groups feel strongly that the agencies should have kept it in place, rather than refuse to defend it and revert to definitions of WOTUS that test the limits of federal authority, cast significant uncertainty onto property owners’ jurisdictional understanding of their land and are not necessary to protect the nation’s waters, they said.

“It is unnecessary and unlawful to define non-navigable, intrastate, mostly dry features that are far removed from navigable waters as ‘waters of the United States’ to try to achieve the (Clean Water) Act’s objective,” they said.

Farm Bureau and the other groups are also disappointed by the lack of meaningful outreach before issuance of the proposed rule and the extremely abbreviated comment period. They are concerned the agencies do not intend to provide the promised open and dialogue-driven process.