American agriculture continues to grapple with the ever-evolving definition of the Waters of the United States (WOTUS) rule, while also increasingly facing concerns surrounding Polyfluoroalkyl Substances (PFAS). Farm Director KC Sheperd recently discussed with Courtney Briggs, Senior Director of Government Affairs at the American Farm Bureau.
Briggs addressed the long-standing uncertainty surrounding WOTUS, stating, “We’ve been on this ride before. For decades, we’ve seen this ping-ponging back and forth of regulatory definitions.” She highlighted the latest development, noting, “Now this new Trump administration has come in. They have said that they will make a new rule that brings the WOTUS definition in line with the Sackett decision that was made back in May of 2023. Unfortunately, the Biden administration did not adhere to that Supreme Court decision. So this is the new Trump administration coming in and working to right that wrong and get a rule that aligns with that Supreme Court decision.”
Briggs explained the historical context when questioned about the persistent lack of a permanent rule. “So there’s no permanent rule, because when Congress wrote the Clean Water Act, they said, ‘We’re going to regulate discharges from a point source into a navigable water.’ Then they defined navigable waters as Waters of the United States. Now we just celebrated the 50th anniversary of the Clean Water Act, in looking at the historical dialog of when this law was enacted, that was the only way they were able to get the law passed was to leave that that definition unclear, and for decades, it has been delegated to the regulatory agencies, the EPA and the Army Corps, to set that regulatory definition.”
However, recent legal developments offer a glimmer of hope for a more stable future. “They’ve been given the deference, that Chevron Deference that we talk about, but now another Supreme Court decision overturned Chevron Deference. So this is a new world that we’re living in as far as a regulatory definition of WOTUS, and I think with the Sackett decision, there’s a lot of guidance that the agencies now have to put this to bed and create a durable rule finally.”
Briggs echoed the industry’s desire for clarity, remarking, “That’s what we’re all hoping for, because you have to redo this every four years, don’t you? I always joke that it’s job security, but I think we’re finally getting closer to really injecting clarity and certainty into a WOTUS definition.”
The conversation then shifted to the emerging concern of PFAS contamination in agriculture. “A lot of farmers, ranchers, and landowners are very unaware of what PFAS is and why we are concerned. PFAS is a forever chemical. It is designed not to break down easily. The chemical bonds are woven so tightly. That’s why we have waterproof, stain-proof, grease-proof products, because we use those PFAS chemicals. I think a lot of people like to use the Teflon pans as the prime example of an everyday product containing PFAS chemicals.”
Briggs detailed how these chemicals are finding their way onto farmland. “Well, unfortunately, there are instances of farm fields being contaminated with PFAS chemicals. The first intersection we ever saw of PFAS coming into agriculture was actually in New Mexico. A couple of dairies were situated near Cannon Air Force Base. What we have found is that Department of Defense installations often use AFFF. AFFF is a fire-fighting foam full of PFAS chemicals. So what was happening was that AFFF was leaching off of the DOD facility into nearby waterways and contaminating the water supply for these dairies.
“However, we also see it occurring naturally in the environment. It will spread because these chemical bonds do not break down. We are also seeing a source of PFAS in biosolids. So, a farmer will go take biosolids off the hands of a wastewater utility and land-apply it beneficially, which has been a celebrated practice at all levels of government for decades. Still, unfortunately, there are situations where the land application of biosolids has led to a contamination of a farm field.”
Briggs offered crucial advice to farmers regarding PFAS risks. “I think you should be aware of where you’re accepting biosolids. Not every area of the country is going to be created equal. I would say you should have your antenna up if you are located near a DOD facility, if you are located near manufacturing facilities, or if you are near a chemical production facility. One of the areas of the country, the city with the highest levels of PFAS is Parkersburg, West Virginia. Why? Because they’re downriver from DuPont. The state of Maine has been a prime example of PFAS contamination because of the industries up there that require the use of PFAS. So not every area of the country is created equal, and folks have to be very aware of what they’re accepting as inputs and just be very cautious.”
The insights from Briggs highlight the ongoing regulatory uncertainty surrounding WOTUS and the emerging environmental threat posed by PFAS. For American farmers, staying informed and exercising caution regarding land management practices and input sources will be crucial in navigating these challenges.
