EPA and Army finalize establishing WOTUS rule definition
In a U.S. Environmental Protection Agency (EPA) press release dated Dec. 30, the EPA and U.S. Department of the Army (the agencies) announced a 514 page final rule establishing a durable definition of Waters of the U.S. (WOTUS).
The rule looks to reduce uncertainty from changing regulatory definitions, protect people’s health and support economic opportunity.
According to the release, the final rule restores essential water protections, which were in place prior to 2015 under the Clean Water Act (CWA) for traditional navigable waters, the territorial seas, interstate waters and upstream wate resources.
The final rule states, “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 rule looks to increase protections for streams, wetlands, ponds and lakes.
Background
Under the Obama administration, the EPA finalized an updated rule which significantly expanded the definition of WOTUS and the EPA’s regulatory authority far beyond the limits originally set in place by Congress.
The 2015 rule gave bureaucrats the ability to impact intermittent and ephemeral streams. This rule was challenged in court and withdrawn in a 2017 executive order by former President Donald Trump.
On June 9, 2021, EPA and the agencies announced their intent to revise the definition of WOTUS to better protect the nation’s vital water resources, which support public health, environmental protection, ag activity and economic growth.
On Nov. 18, 2021, the agencies announced the signing of a proposed rule revising the WOTUS definition.
According to the EPA release, CWA prohibits the discharge of pollutants from a point source into “navigable waters” unless otherwise authorized under the act. Navigable waters are defined in the act as “the waters of the U.S., including territorial seas.”
Thus, WOTUS is a threshold term establishing the geographic scope of federal jurisdiction under the CWA. The term WOTUS is not defined by the act but by the agencies in regulations since the 70s and jointly implemented in the agencies’ respective programmatic activities.
The latest definition is an effort by the Biden administration to find a solution for protecting wetlands and streams, but has triggered intense lobbying concern among agriculture groups.
Industry feedback
On Dec. 30, the National Cattlemen’s Beef Association (NCBA) issued the following statements regarding the Biden administration’s finalized WOTUS rule.
“For too long, farmers and ranchers have dealt with the whiplash of shifting WOTUS definitions. Today, the Biden administration sought to finalize a WOTUS definition that will protect both our nation’s water supply and cattle producers across the nation,” said NCBA Chief Counsel Mary-Thomas Hart. “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 previously called the EPA to retain agricultural exclusions for small, isolated and temporary water features commonly found on farms and ranches. These exclusions have broad support and were included in the WOTUS rules under both Republican and Democratic administrations.
According to NCBA, the rule fails to clearly exempt isolated and ephemeral features from federal jurisdiction and relies on case-by-case determinations to assess whether a feature is federally regulated. NCBA notes the rule creates a significant and costly burden for ag producers.
According to EPA Assistant Administrator for Water Radhika Fox, the rule wasn’t written to stop development or prevent farming.
“We have put forward a rule that’s clear, durable and balances protecting of our water resources with the needs of all water users, whether it’s farmers, ranchers, industry or water organizations,” said Fox. “It is about making sure we have development happening, that we’re growing food and fuel for our country but doing so in a way that also protects our nation’s water.”
Wyoming Farm Bureau Federation President Todd Fornstrom shared comments on the matter in a Jan. 4 press release by saying, “As farmers and ranchers, we share the goal of protecting the nation’s water. Reverting to a rule that was unreasonable and unworkable is a threat to the nation’s water. The 2015 rule made conservation more difficult and created huge liabilities for farmers and ranchers.”
The Supreme Court is reviewing the EPA’s jurisdiction under the CWA and is expected to provide a rule which could reduce the government’s authority to regulate wetlands. Experts called the Biden administration’s move strategic.
Fornstrom said it is essential to preserve the CWA’s partnership among federal, state and local regulators.
“The CWA requires the federal government to work hand-in-hand with states, because the federal government cannot and should not regulate every single wet feature in every community,” he said. “Unfortunately, this new rule will revert to the old, significant nexus test which creates regulatory uncertainty on private land miles from the nearest navigable water.”
Fornstrom said this new rule puts property rights at risk and does nothing to benefit water.
“We know the importance of clean water, and farmers and ranchers work hard to protect our natural resources every day,” he said. “Farm Bureau cannot overstate the concern we have with a rule that complicates the lines of jurisdiction so deeply farmers and ranchers will need to hire an army of consultants and lawyers to use their land.”
“The timing of this rule could not be worse,” mentioned Hart. “The Supreme Court is currently considering Sackett vs. EPA, which will provide much-needed clarity related 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.”
Brittany Gunn is the editor of the Wyoming Livestock Roundup. Send comments on this article to roundup@wylr.net.
