On the last business day of 2022, the Biden administration finalized a new rule to establish the definition of “waters of the United States” (WOTUS), reinstating water protection measures.
The new rule will replace the Navigable Waters Protection Rule, which was put in place by the Trump administration. Under the new definition, isolated and ephemeral features are not exempt from federal jurisdiction and will instead be regulated on a case-by-case basis.
The Environmental Protection Agency (EPA) and Department of the Army said the final rule establishes a “durable definition” and restores water protections that were in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas, interstate waters and upstream water resources that significantly affect those waters.
“As a result, this action will strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies, and downstream communities,” the agencies said.
The agencies continued that the rule returns to the framework found in the pre-2015 definition but with updates to reflect Supreme Court of the United States (SCOTUS) decisions, the latest science and the agencies’ expertise.
The new rule goes into effect 60 days after it is published in the Federal Register. More information on the rule, including joint coordination memos from the EPA and the Department of the Army, can be found at epa.gov/wotus.
Impacts on ag
The American Farm Bureau Federation (AFBF) said the rule does not provide clarity or certainty and allows the federal government to expand its jurisdictional reach over private property.
“It is clear that the agencies have doubled down on their use of the troubling significant nexus test, which will require landowners to hire environmental consultants, attorneys and engineers to ensure that they are in compliance,” said AFBF Senior Director of Government Affairs Cortney Briggs.
She continued that since the rule relies on case-by-case determinations and “ambiguously-defined terms” it is difficult for farmers to understand if they have a jurisdictional feature on their property. As there are civil and criminal liabilities associated with Clean Water Act compliance, a clear line of jurisdiction is important, she said.
The National Cattlemen’s Beef Association (NCBA) concurred with the Farm Bureau’s reaction.“For too long, farmers and ranchers have dealt with the whiplash of shifting WOTUS definitions,” said NCBA Chief Counsel Mary-Thomas Hart in a released statement. “While the rule retains longstanding, bipartisan WOTUS exclusions for certain agricultural features, it creates new uncertainty for farmers, ranchers and landowners across the nation.”
NCBA asked the EPA to retain agricultural exclusions for small, isolated and temporary water features commonly found on operations. The group said the exclusions have had broad, bipartisan support and were included in earlier WOTUS rules. “Today’s rule is a far cry from the regulatory certainty provided by the Navigable Waters Protection Rule, creating a significant and costly burden for agricultural producers,” NCBA said.
Hart continued that the timing of the new rule “could not be worse,” as SCOTUS is currently reviewing Sackett v. EPA, a decision that could provide clarity to the WOTUS definition.
“Today’s final rule seeks to directly preempt ongoing Supreme Court litigation, leaving farmers and ranchers with more questions than answers,” Hart concluded.
Other reactions
Earthjustice said in a statement, “The Supreme Court’s decision to take up the Sackett case before the agencies finalized this rule raises questions about its agenda and threatens to undercut protections for our nation’s waters even as this rule seeks to strengthen them. We expect the Supreme Court to issue its decision in early 2023.”
Members of the Congressional Western Caucus condemned the ruling. “All this rule does is make it more difficult to grow food or build anything,” said Vice Chair Doug LaMalfa (R-CA-01) in a statement. “Frankly, that seems like the whole point—to make every day Americans ask permission from their government for basic tasks like cleaning a ditch, repairing a road, or building something on your own property. I say NO, and I’ll be leading an effort to stop yet another ridiculous rule.” — Anna Miller, WLJ managing editor
