Where are we headed with the new WOTUS rule?

When the Environmental Protection Agency and the Army Corps of Engineers released their latest definition of “waters of the U.S.” on Dec. 30, the agencies might have felt they successfully threaded the needle between farm and environmental interests and established a durable solution for what has become a contentious issue.

After all, this 514-page rule is the third attempt by a presidential administration in seven years to come up with a definition of WOTUS that can stand the test of time. The rule takes effect 60 days after it was formally published in the Federal Register, but it’s likely to face legal challenges, and an upcoming Supreme Court ruling could lead to yet other modifications.

How did we get here? The Obama administration issued a rule in 2015, which the Trump administration repealed in 2019 and then replaced in 2020. But both rules were struck down in the courts, and the Biden administration returned to “pre-2015” regulations and guidance when it took office.

“The final rule restores essential 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,” the two agencies that jointly administer the Clean Water Act stated in a news release.

“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.

Under the new rule, those protected waters include ephemeral streams, which flow in response to precipitation. The Trump administration’s 2020 rule categorically excluded ephemeral streams from regulation.

“There is overwhelming scientific information demonstrating the effects ephemeral streams can have on downstream waters and the effects wetlands can have on downstream waters when they do not have a continuous surface connection,” the rule says.

Using the Supreme Court’s Rapanos ruling from 2006 as a guide, the agencies said they would recognize as jurisdictional those waters with “relatively permanent” flows but also those that have a “significant nexus” to navigable waters. That test was advanced by former Justice Anthony Kennedy and agreed to by four other justices who rejected the narrower “relatively permanent” standard outlined by the late Justice Antonin Scalia.

Some ag lobbyists agreed that this latest version marks an improvement over the definition issued during the Obama administration—in part because it doesn’t attempt to define areas of CWA jurisdiction by their physical distance from a stream or river. Those provisions in the 2015 rule meant that much of the land in some farm states fell under federal jurisdiction.

But the new rule’s treatment of ephemeral streams creates uncertainty for landowners since it will be up to the agencies to decide on a case-by-case basis which features fall under federal jurisdiction. The agencies will be guided by whether the streams have “relatively permanent” flows or a “significant nexus” to navigable waters.

The new rule does maintain longstanding exemptions for farming activities, but trims back an exclusion for prior converted cropland that had been in the Trump administration’s Navigable Waters Protection Rule.

For the most part, ag groups criticized the lack of “certainty” provided in the new rule and suggested that waiting for an upcoming Supreme Court ruling would have been a better plan.

American Farm Bureau Federation President Zippy Duvall said his organization was “extremely disappointed” in the new rule and said that farmers and ranchers “deserve rules that don’t require a team of attorneys and consultants to identify ‘navigable waters’ on their land.”

“EPA has doubled down on the old significant nexus test, creating more complicated regulations that will impose a quagmire of regulatory uncertainty on large areas of private farmland miles from the nearest navigable water,” Duvall added.

Chandler Goule, CEO of the National Association of Wheat Growers, said his group was “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.”

Mary-Thomas Hart, chief counsel for the National Cattlemen’s Beef Association, said the rule was a "far cry from the regulatory uncertainty" provided by the 2020 rule.

Environmental groups, however, welcomed the new rule’s release.

“It’s a smart move to take this off the books,” Jon Devine, director of federal water policy for the Natural Resources Defense Council, said in a statement. “Eliminating the anti-science Trump ‘Dirty Water Rule’ and codifying longstanding practices is a sensible, good-government action. And this comes at a time when we’re seeing unprecedented attacks on federal clean water protections by polluters and their allies.

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The National Wildlife Federation said the new rule reinstates water protections that existed prior to the 2020 rule.

The “new rule will help protect the streams, wetlands, rivers, and lakes people and wildlife depend upon from pollution and other threats,” said Jim Murphy, director of legal advocacy for NWF.

Editor’s note: Sara Wyant is publisher of Agri-Pulse Communications, Inc., www.Agri-Pulse.com.