A chorus of angry responses from dozens of farm and business groups met the Dec. 30 announcement by the Environmental Protection Agency and Corps of Engineers of a sixth “final” definition of the phrase “waters of the United States” in the Clean Water Act in less than 10 years. One member of Congress said the rulemaking will result in “regulatory chaos.”
The new rule will take effect 60 days after it is published in the Federal Register. Its enactment, while expected, was announced even as the Supreme Court is currently deciding a case, Sackett v. EPA, that may well supersede or modify it. The two agencies are issuing a memo with U.S. Department of Agriculture to “provide clarity” on the agencies’ programs under the Clean Water Act and Food Security Act.
New rulemaking
The Biden administration initiated the new rulemaking process in June 2021 after President Joe Biden at first attempted to repeal and replace President Donald Trump’s Navigable Waters Protection Rule via executive order. Like all such moves in recent years, the attempt resulted in immediate lawsuits. After one reached the Supreme Court, the court ordered the administration to start a new rulemaking process instead of using executive orders. In 2022, a coalition of farm groups asked the EPA in to delay the rule-making process.
The Corps and EPA said the new rule establishes what they call a “durable” definition of waters of the U.S. “to reduce uncertainty from changing regulatory definitions, protect people’s health, and support economic opportunity.” But farm groups disagree.
“This [new] rule does not provide the needed clarity and certainty that the regulated community has long called for,” Courtney Briggs, senior director of government affairs for the American Farm Bureau Federation, said in a podcast. “This rule allows the federal government to expand their jurisdictional reach over private property. It is clear that the [federal] 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 they are in compliance.”
National Milk Producers Federation President Jim Mulhern said, “NMPF is disappointed that once again dairy farmers, who every day strive to be leaders in environmental stewardship, may need to live under a WOTUS rule that is cumbersome, unclear and overly complicated. Because the EPA’s most recent iteration fails to resolve what is now a 50-year struggle to define what constitutes a water body subject to federal regulation under the Clean Water Act, our members will face continued uncertainty as they attempt to comprehend and comply with unclear regulations. NMPF was pleased with the Navigable Waters Protection Rule and disappointed when it was revoked. NMPF is also disappointed that EPA failed to listen to numerous agriculture stakeholders that called on the agency to stay rulemaking on a new WOTUS rule until the Supreme Court ruled on the Sackett case, expected this spring.”
Sixth definition in 10 years
According to Rep. Tracey Mann, R-KS, “Thanks to regulatory overreach, farmers, ranchers, and agricultural producers will now be forced to operate their businesses under the federal government’s sixth definition of ‘water’ in the past ten years alone. The Biden administration’s newest version of ‘Waters of the U.S.’ removes longstanding bipartisan exemptions for common water features like ponds or streams found on farms and ranches. The Biden administration has created regulatory chaos for producers, who are working hard to keep us all fed, fueled, and clothed. Farmers are the original conservationists, and they deserve the gratitude and support of the federal government, not red tape and burdensome overregulation.”
Chandler Goule, CEO of the National Association of Wheat Growers, said, “The National Association of Wheat Growers is deeply concerned that the EPA and U.S. Army Corps rushed to get this revised definition out prior to the end of the year instead of waiting for the decision in the Sackett case before the Supreme Court. While we continue reviewing the final rule, since the rulemaking process was announced last year, NAWG has stressed that farmers need clarity regarding jurisdiction, recognize important agricultural water features, and more long-term certainty from the courts and administrations.” In April 2022, NAWG filed an amicus brief with other agriculture groups in the Sackett case.
“For years we have been at the mercy of unclear and ever-changing federal regulations of surface water on our private property,” said Texas and Southwestern Cattle Raisers Association President Arthur Uhl said. “Rather than creating a clear definition of WOTUS that defines what bodies of water fall under federal jurisdiction, the EPA only further exacerbated the problem. While the new rule creates limited exceptions for agriculture, the changes still fall woefully short of addressing the concerns raised by landowners to the EPA. The WOTUS has damaging effects to the beef industry, delaying, obstructing, and hindering our ability to raise beef, steward our land, and support our local economies. Landowners must now implement the unclear framework of this rule, or risk being fined thousands of dollars per day for noncompliance.”
Rep. Frank Lucas, R-OK, who represents a large farming district and has a degree in agricultural economics, said, “I am extremely discouraged by the EPA’s actions regulating wetlands and waters in a manner inconsistent with the Clean Water Act. During this time when increased agriculture production and growth are critical, the rule fails to provide certainty for America’s farmers and ranchers. Furthermore, the Biden administration’s contradictory rule ensures [that] lengthy litigation surrounding the scope of federal regulatory authority of our nation’s waterways will continue with confusion and regulatory uncertainty. Oklahoma’s farmers, ranchers, and landowners have demonstrated their responsible stewardship of the land for generations, and I will continue to stand with my colleagues on both sides of the aisle in opposition to the continued inconsistent interpretation of WOTUS and the Clean Water Act.”
Long history
The Biden administration rule restores a definition that operated prior to 2015 and was replaced by the Navigable Waters Protection Rule, a more limited definition put in place by the Trump administration but adds new elements. The Trump NWPR was supported and praised by farm and ranch interests, who have been consistently critical of efforts going back to the Obama administration to expand the definition of “waters of the United States,” describing them as covert land grabs to extend EPA authority over most arable and productive land. The Obama WOTUS redefinitions were the subject of immediate multiple lawsuits by states as well as by ag, farming and business interests, many of which were ultimately consolidated.
Among the legal criticisms in the WOTUS wars, critics contend that what was billed by the Obama administration as a mere “redefinition” of the term in the Clean Water Act (a redefinition that took up 70 pages) amounted to unlawful and covert lawmaking by a federal agency. Critics argue that only Congress has authority to extend or modify the EPA’s authority. Both sides in the WOTUS wars have claim to have science on their side.
Split decision
The Supreme Court itself is responsible for some confusion over the scope of the Clean Water Act and the definition of “waters of the U.S.” A confusing split 4-4-1 ruling in a 2006 case, Rapanos v. United States, added to uncertainty over what constitutes a “water of the United States.” Justice Kennedy’s formula that a regulated water had to have a “significant nexus” with a navigable waterway was adopted by the Obama administration, which believed it supported a wider scope of regulation. Critics said it was too ambiguous and unclear, or allowed regulatory overreach. The Trump definition’s rule relied instead on Justice Anthony Scalia’s dissent in that case.
Observers on all sides hope that the current Sackett case resolves ambiguities in the Rapanos ruling and end the seemingly endless WOTUS wars once and for all.
David Murray can be reached at [email protected].
