The long-awaited decision of what to do with the Waters of the U.S. (WOTUS) rule has arrived in agriculture’s favor. The Environmental Protection Agency (EPA) and Department of the Army announced on Aug. 29 that it would amend the 2023 definition of WOTUS to be consistent with the Supreme Court’s ruling in Sackett v. EPA.
This includes removing the “significant nexus” test as a determinant for identifying tributaries and other waters as federally protected. In addition, the rule revises the adjacency test when identifying protected wetlands, clarifies that interstate wetlands do not fall within the interstate waters category, and clarifies what can be considered under the “additional waters” category.
“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, Tribes and partners,” said EPA Administrator Michael S. Regan in a statement. “We’ve moved quickly to finalize amendments to the definition of ‘waters of the United States’ to provide a clear path forward that adheres to the Supreme Court’s ruling.”
The Supreme Court issued a decision on May 25 in the case Sackett v. EPA, narrowing EPA’s authority to regulate wetlands under the Clean Water Act and killing the significant nexus test. The case stemmed from a years-long battle between Michael and Chantell Sackett of Idaho and the federal government, and the ability for the couple to build a home on their land near a lake.
Earlier in January, the EPA and Department of the Army published a final rule revising WOTUS, which became effective in March. Opponents argued the agencies should have waited until a decision was made on the Sackett v. EPA case before revising the definition.
“The entire cattle industry breathed a sigh of relief when the Supreme Court curtailed the EPA’s overreach under the Clean Water Act,” National Cattlemen’s Beef Association Chief Counsel Mary-Thomas Hart said in a statement. “Today’s revised WOTUS definition is an important step toward bringing the EPA more in line with the Supreme Court’s ruling.”
The revised rule does not change the eight exclusions from the definition of WOTUS, which include:
• Prior converted cropland.
• Waste treatment systems.
• Ditches.
• Artificially irrigated areas.
• Artificial lakes or ponds.
• Artificial reflecting pools or swimming pools.
• Waterfilled depressions.
• Swales and erosional features.
The amended definition also does not affect the activity-based permitting exceptions provided to the ag community by the Clean Water Act, EPA said.
Reactions
Although the American Farm Bureau Federation (AFBF) expressed their support for the elimination of the significant nexus test, the group raised other concerns. “EPA had a golden opportunity to write a Waters of the U.S. rule that’s fair to farmers and stands the test of time, but instead chose to continue government overreach and revise only a small slice of the rule that was rejected by the Supreme Court,” said AFBF President Zippy Duvall in a statement.
He continued that EPA has ignored other concerns raised by Supreme Court justices, 26 states, and farmers across the country about the rule’s failure to respect private property rights and the Clean Water Act. “Farmers and ranchers share the goal of protecting the resources they’re entrusted with. They deserve a rule that respects farmers as partners in that effort,” he said.
Environmental groups condemned EPA’s revised rule and called it the largest rollback of water protections in the U.S., saying it drastically limits the scope of the Clean Water Act.
“The new rule from EPA adjusts its existing regulations to comport with Sackett and reflects our dangerous new reality—one where mining companies, Big Ag fossil fuel developers, and other polluting industries can bulldoze and fill wetlands indiscriminately, harming our public health and ecosystems,” said Patrice Simms, vice president of litigation for Healthy Communities, in a statement.
EPA and the Department of the Army will host a public webinar on Sept. 12 to provide updates on the revised WOTUS definition. For more information and to register for the webinar, visit www.epa.gov/wotus/amendments-2023-rule. The agencies also plan to host listening sessions this fall. — Anna Miller, WLJ managing editor
