Expected pushback from farmers, others
As expected, the Environmental Protection Agency (EPA) today issued a new rule defining Waters of the United States (WOTUS) under the Clean Water Act. Also as expected, it maintains longstanding exemptions for farming activities but trims an exclusion for prior converted cropland that had been in the Trump administration’s Navigable Waters Protection Rule. The 514-page rule was released by EPA and the Army Corps of Engineers (link). Link to fact sheet.
“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, as well as upstream water resources that significantly affect those waters,” the two agencies say in a joint 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.
The rule takes effect 60 days after it is formally published in the Federal Register.
The rule largely revives a definition of WOTUS released during the Reagan-era, updated to accommodate limits the Supreme Court has placed on federal jurisdiction during the intervening 36 years. The latest definition is an effort by the Biden administration to find a “durable” solution for protecting wetlands and streams — an issue that has been hotly debated since the Clean Water Act’s passage in 1972. Through the years, the question has triggered regulatory back-and-forth, intense lobbying, and legal and political brawls among developers and agricultural and environmental groups.
The new rule would give federal protection to large waterways, like interstate rivers and streams and wetlands that are adjacent to them. Wetlands would be considered adjacent if they are connected to those larger waterways with “relatively permanent” surface water connections, or if they have a “significant” hydrologic or ecological “nexus” to those protected tributaries. Those terms are rooted in a 2006 Supreme Court case, Rapanos v. United States, which splintered the justices 4-1-4 and resulted in two competing tests to determine if property is beholden to Clean Water Act permitting requirement
The agencies issued a “joint coordination memo” with USDA and said they would “enhance consideration of regional differences in (WOTUS) implementation” through training and continued development of methods to assess streamflows in the Great Plains and Western Mountains; Northeast and Southeast; and the Arid West. EPA and the Corps also issued a separate joint coordination memo “to ensure the accuracy and consistency of jurisdictional determinations” under the final rule.
Some predict a legal backlash from farmers, developers and businesses that will argue the regulation is inconsistent with the Clean Water Act. One source told us: “It exceeds the plurality opinion in Rapanos… it goes too far and doesn’t provide sufficient legal clarity as to what falls under regulation and what doesn’t. This, too, would be the majority opinion in Sackett if Roberts the judge shows up rather than Roberts the politician.”
As we noted previously, the Supreme Court is reviewing EPA’s jurisdiction under the Clean Water Act, so this will not be the final WOTUS definition. The coming one is the definition that will be in place until the Biden administration/EPA proposes a brand new one based on their field hearings and reflects the still-awaited Supreme Court ruling. This is the final rule that OMB completed their review of on Nov 30. The new definition has not even been proposed yet. In Sackett v. EPA, the Supreme Court once again considered the scope of wetlands jurisdiction under the Clean Water Act (CWA). Specifically, the Court was asked to revisit its landmark Rapanos ruling which resulted in two tests to establish when a wetland should receive CWA protection. However, the Court rules are sure to impact the scope of CWA jurisdiction, and potentially impact EPA’s ongoing attempt to redefine the key CWA term “waters of the United States.” Link to learn more about the case.