EPA releases revised WOTUS rule
By: Sydney Sheffield
The United States Environmental Protection Agency (EPA) and the Department of the Army have issued a final rule regarding the Waters of the United States Rule (WOTUS). This announcement comes on the heels of the Supreme Court’s May 2023 decision in the Sackett v. EPA case, which overturned portions of the WOTUS rule.
The Clean Water Act authorizes EPA to regulate the nation’s navigable waterways. Under the previous WOTUS rule issued by President Biden at the end of 2022, that included bodies of water with a “significant nexus” to navigable waterways. The Supreme Court ruled that definition was too broad, insisting EPA could only regulate bodies of water with a direct connection to navigable waters. Over the past eight years alone, the regulatory definition of WOTUS has been modified five times, once in 2015, 2019, 2020, and twice in 2023.
Rather than issuing a new rule, the EPA deleted parts of the January 2023 rule, narrowing the scope of waters subject to federal regulation under the Clean Water Act. The WOTUS amendments change the parts of the 2023 definition of WOTUS that are invalid under the Sackett decision. For example, the rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected. It also revises the adjacency test when identifying federally jurisdictional wetlands, clarifies that interstate wetlands do not fall within the interstate waters category, and clarifies the types of features that can be considered under the “additional waters” category.
While many in the agriculture industry are celebrating the EPA’s decision, some think it is still unfair to farmers and ranchers. Zippy Duvall, American Farm Bureau Federation (AFBF) President said, “EPA had a golden opportunity to write a WOTUS 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. We’re pleased the vague and confusing ‘significant nexus’ test has been eliminated as the Supreme Court dictated. But EPA has ignored other clear concerns raised by the Justices, 26 states, and farmers across the country about the rule’s failure to respect private property rights and the Clean Water Act.”
The eight exclusions from the definitions of WOTUS are not changed by the amendments and include prior converted cropland, waste treatment systems, ditches, artificially irrigated areas, artificial lakes or ponds, artificial swimming pools or reflection pools, waterfilled depressions, and swales or erosional features.
“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,” Duvall concluded.
Read the final rule here.