Democratic President Joe Biden spent part of his first week in office inserting himself into one of agriculture’s hottest policy debates, the fight over which waterways will be protected under the Clean Water Act.
Biden’s initial executive orders included one that threw out Republican President Donald Trump’s order. Trump’s action led to new rules that farmers fear will limit their work in fields that contain what the federal government considers “navigable waters.”
Various versions of those rules have been tied up in court through multiple administrations led by both major parties.
In Iowa, the debate has included a sitting governor who considered the Obama-Biden rules a “land grab,” and scholars who say farmers are largely unaffected by the rules and are merely jockeying for political position.
Iowa officials’ reaction to Biden’s move to change the rules again have been somewhat guarded, in part because the specifics aren’t known. The debate is over the Waters of the United States rules, commonly referred to as WOTUS.
In an interview, Agriculture Secretary Mike Naig, a Republican, said a return to Obama’s version of the rules would be “very detrimental” to farmers.
“WOTUS, as it was written under the Obama administration, was very detrimental to farmers, communities and businesses,” Naig said. “Its broad interpretation created uncertainty, overly burdensome regulations, inconsistent enforcement, and hindered conservation efforts. The WOTUS rule was a disaster then and it would be a disaster now. I hope the Biden administration will not make the mistake of reverting to these Obama-era policies.”
Biden was vice president in the Obama administration.
‘A political hoax?’
Neil Hamilton, emeritus director of the Drake Agricultural Law Center, called the whole debate a “political hoax” pushed by farm interests.
“The whole WOTUS debate was a political hoax created by the (American Farm Bureau Federation) as part of their anti-government and anti-public campaign,” said Hamilton, an emeritus professor of ag law at Drake University. “The WOTUS rules have essentially no impact on Iowa farmers in large part because the (Clean Water Act) has almost no impact on farmers. This was all one large political stunt which most Iowa Republican politicians were more than happy to traffic in.”
The Clean Water Act exempts much of agriculture from its requirements because pollution is from diffuse sources that are hard to regulate or control. However, some large agricultural facilities are included. Plaintiffs in many court cases have argued that drainage districts and other elements of farming should be regulated as “point” sources of pollution akin to pipes coming out of a factory.
Representatives of the Iowa Farm Bureau Federation and the Iowa Corn Growers Association said it’s too early to comment. Pat Garrett, an aide to Gov. Kim Reynolds, a Republican, did not immediately respond to an email seeking comment Friday afternoon.
Trump moved to ease regulations with his now-eliminated 2017 order, which led the U.S. Environmental Protection Agency to propose new rules in 2019 that became final in June. The idea was to clarify what was covered by the WOTUS rule.
The Trump-era rule set four categories of waters covered by the restrictions and defined exclusions and legal terms. The rule broadly determines which waters in the United States are protected under the 1972 Clean Water Act.
Farmers fear limits
Farmers have long feared that the rules would limit what they could do on land that was merely damp, used to be damp, or has a stream across it only during deluges.
Reynolds and Naig, along with the acting director of the Iowa Department of Natural Resources, Bruce Trautman, in 2019 supported Trump’s move in official comments.
At the time, Reynolds referred to the Obama-era rules as a “massive overreach.” Now farmers anticipate the rules will tip back toward the Obama version.
“The new WOTUS rule provides much needed stability for our farmers whose livelihoods depend upon their ability to work the land,” Reynolds said in 2019. “It’s another win in the battle against the Obama administration’s massive federal overreach in 2015.”
Naig said at the time that the uncertainty around the rules are a headache for farmers.
“Farmers, businesses and communities need to clearly understand what bodies of water are and are not covered under the WOTUS rule,” Naig said in 2019. Last year, when the Trump administration’s final rule proposal emerged, Naig said the Trump-era rule would help Iowa farmers reach the goals of the state’s voluntary Nutrient Reduction Strategy.
After meeting with then-EPA Administrator Scott Pruitt in Iowa, Reynolds said: “The 2015 WOTUS rule released during the Obama administration was a massive federal land grab, creating confusing and uncertainty for regulators, farmers, ranchers and others who depend on their ability to work the land.”