Nebraska Farm Bureau Supports Perennial WOTUS Standard

About 220,000 public comments preceded the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers’ Sept. 9, 2026 supplemental proposal to narrow federal Clean Water Act jurisdiction. Nebraska Farm Bureau (NEFB) filed formal comments on Oct. 9 supporting the revised definition of “waters of the United States,” or WOTUS.

The proposal would generally limit federal jurisdiction to perennial streams, lakes and ponds, meaning waters that ordinarily contain standing or flowing water throughout the year. Wetlands would generally need a perennial surface-water connection to a federally regulated water.

NEFB supports that standard, which it considers easier for farmers and ranchers to apply than a test based on models or temporary conditions. For a producer, the distinction resembles a year-round farm-road map: channels that carry water season after season differ from tracks that appear only after rain.

What does the supplemental proposal change?

EPA and the Corps proposed regulations in November 2025 to put the Supreme Court’s 2023 Sackett v. EPA decision into practice. The court held that federal protection generally applies to relatively permanent waters and wetlands with a continuous surface connection to those waters.

The supplemental proposal advances the perennial standard. NEFB had supported the November proposal but objected to its “wet season” standard, which the Farm Bureau said could treat temporary Nebraska summer storm features as regulated waterways.

NEFB President Mark McHargue said: “For more than a decade, whether a draw in a pasture or a ditch along a field is federally regulated has depended on who was in the White House.” He said farmers need a rule they can apply on their own land and that will remain in place 10 years from now.

What is at stake for Nebraska farms?

The WOTUS definition has changed repeatedly since 2015, leaving farmers and ranchers unsure whether farm ditches, seasonal streams and low areas that temporarily hold water fall under federal regulation. For agriculture, federal jurisdiction can trigger permitting requirements for regular activities on or near regulated waters.

In its comments, NEFB asked the agencies to:

• clearly define “ordinary conditions”;
• establish a consistent method for accounting for drought;
• retain exclusions for farm and irrigation ditches, prior converted cropland, groundwater and agricultural tile drainage; and
• recognize landowner records and observations as evidence when deciding whether a water feature meets the federal definition.

NEFB also asked for a clear, workable rule that can withstand legal challenges and provide certainty for years. The organization incorporated legal and technical analysis from the American Farm Bureau Federation and endorsed comments submitted by the Waters Advocacy Coalition.

What protection would remain outside federal jurisdiction?

The proposed narrowing would not eliminate protection for Nebraska’s water resources. Waters outside federal jurisdiction would remain subject to state water-quality standards and the work of Nebraska’s 23 Natural Resources Districts. Existing Clean Water Act exemptions for normal farming and ranching activities also would remain unchanged.

McHargue said the issue is not whether Nebraska’s water should be protected, but which organizations can manage it. He pointed to the record of local and state organizations that manage water according to conditions on the ground.

When does the rule become final?

EPA and the Corps will review the public comments before issuing a final rule, but neither agency has announced a timeline. Further legal challenges are expected.

“Our goal is not the narrowest rule possible. It is a rule that is legally defensible, that lasts beyond one administration, and that reflects what is actually happening on the ground in Nebraska. Getting that right on paper now is how we avoid fighting this same fight again every four years,” McHargue said.

The next regulatory milestone is a final rule defining jurisdictional waters. Its durability will determine whether federal permitting boundaries settle or return to court; the agencies have set no deadline, and further legal challenges are expected.