The Waters of the United States, aka WOTUS, has been a regulatory tug-of-war for decades, and it remains a top concern for landowners.
Mary-Thomas Hart, chief counsel with the National Cattlemen’s Beef Association, says the issue has gone through more than a dozen revisions since the Clean Water Act passed in 1972. Four of those changes happened in the last 18 years.
A major sticking point is clarity, Hart explains. Producers want to know if the streams or low spots on their land, especially those that only fill with water after it rains, fall under federal jurisdiction. She says this uncertainty makes it difficult to do business.
“When you don’t have any certainty around WOTUS, you can’t effectively plan for future business decisions, future permitting needs,” Hart says. “I think it impacts succession planning in a big way. It impacts every facet of the cattle operation, especially if you’re talking about a ranch with grazing cattle.”
The Trump administration clarified that “ephemeral features” — those temporary water flows — were excluded from federal oversight. That language was removed by the Biden administration, even though officials said ephemeral features still don’t apply. Hart says landowners want that exclusion explicitly stated in writing.
“We want it in text, on paper, clear,” she says.
In 2023, the U.S. Supreme Court sided with farmers in the Sackett v. EPA decision, saying landowners have a constitutional right to know when water on their property may fall under federal regulation. With potential criminal liability on the line, clarity isn’t just a request; it’s a legal liability, Hart says.
“I think that’s the question we’re all asking: Where is the Trump administration going from here?” she says.
