Through written and verbal testimony, Illinois Farm Bureau made its message clear: Leave the Navigable Waters Protection (NWP) rule alone.

“Although it was not perfect, it provided clear definitions of jurisdictional features that farmers could use to determine jurisdiction in the field,” said Lauren Lurkins, IFB’s director of environmental policy. “That sort of clarity is important as farmers face major consequences for noncompliance.”

Lurkins spoke during three of six virtual meetings hosted by the U.S. Environmental Protection Agency and the Army Corps of Engineers. The agencies requested public comment on its plan to scrap the NWP rule and redefine “waters of the U.S.” again. IFB also submitted its written 15-page public comment to the Federal Register signed by IFB President Richard Guebert Jr. The comment period ended Sept. 3.

IFB spent years advocating for repeal of the 2015 Obama-era rule, seen as an overreach of power beyond what Congress intended. The Trump administration repealed and replaced that rule with the NWP rule, which the Biden administration now seeks to undo.

Why is this issue important to farmers? Guebert explained in IFB’s written comments: “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.

“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 owners,” Guebert wrote. “And even those farmers 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 activities on their lands. For all of these reasons, farmers have a keen interest in how the agencies define ‘waters of the United States.”

IFB urged EPA and the Army Corps to ensure rules governing federal waters:

  • Have clear, well-defined exclusions, including groundwater farm ditches, ponds and prior converted cropland.
  • Provide farmers flexibility to implement innovative nutrient loss reduction and conservation practices.

“Farmers interact with a myriad of local, state and federal agencies and rules as they operate their businesses,” Lurkins said. “Many times, they attempt to navigate much of that process on their own as they do not have their own staff of engineers and environmental attorneys on hand. Also, like other industries, farmers have the goal of complying with any laws that exist. They can, however, only comply with laws that they know about and understand.”