The Biden administration issued a water law reversal on the last working day of the year, creating more change in the longstanding issue of how to define navigable waters of the U.S., including streams, runoff and ponds used in agriculture.
The EPA and Department of the Army finalized its waters of the U.S. (WOTUS) rule on Friday with language that reverts water protections back to their 2015 legal definitions before the Obama and Trump administrations made their own changes.
“When Congress passed the Clean Water Act 50 years ago, it recognized that protecting our waters is essential to ensuring healthy communities and a thriving economy,” said EPA Administrator Michael S. Regan in a press statement. “Following extensive stakeholder engagement, and building on what we’ve learned from previous rules, EPA is working to deliver a durable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity and protects people’s health while providing greater certainty for farmers, ranchers and landowners.”
The agencies’ statement described the new rule as “reasonable and familiar framework” to invested parties and the public.
The EPA’s move is seen as a legal strategy to give the rule some legal precedent before the Supreme Court rules sometime in 2023 just how far the federal government can prohibit and regulate some water uses.
“If the Supreme Court goes first, then the agency can’t finalize a rule that goes beyond it,” said Kevin S. Minoli to The New York Times. Minoli served as EPA legal counsel in the Clinton, Bush, Obama and Trump administrations. By moving first to establish the rule of law, the EPA has more flexibility to interpret the court decision once it’s handed down, he said.
Other groups questioned the move as clear federal overreach and unnecessary given the small time frame before clarity is provided by the nation’s high court.
“Although we recognize EPA’s attempt at clarifying through a roster of exemptions, its rule ignores the voices of nearly all in American agriculture who have long been seeking clarity on this issue, especially regarding the debate over what is and is not a navigable water,” said Ted McKinney, CEO of the National Association of State Departments of Agriculture.
“Further, the release of this ruling ahead of the U.S. Supreme Court ruling on Sackett v. EPA wastes tremendous federal, state and private sector resources as the decision of SCOTUS will invariably shift water regulations across the United States yet again significantly. This is in stark contrast to the comments previously made by Administrator Regan to the U.S. House Appropriations Subcommittee on Interior and the Environment that the EPA’s rule would 'be in a position to respond and adjust to the Supreme Court ruling.'”
Mary Thomas-Hart, chief counsel for the National Cattlemen’s Beef Association, called the move a “whiplash of shifting WOTUS definitions” that while aiming to protect bipartisan exclusions agreed upon over seven years ago, still creates uncertainty.
“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,” she wrote in a statement.
Exemptions in the Clean Water Act permitting process still include the following:
- Normal farming, silviculture and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber and forest products, or upland soil and water conservation practices
- Maintenance of dikes, levees, groins, riprap and transportation structures
- Construction of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches
- Construction or maintenance of farm roads, in accordance with best management practices
Those uses categorized as exclusions to the final waters of the U.S. rule’s regulatory text include two longstanding elements:
- Prior converted cropland: The final rule defines prior converted cropland consistent with the USDA's definition. Prior converted cropland remains excluded from the definition of waters of the U.S. as long as it is available for agricultural commodity production. The agencies interpret availability for agricultural commodity production to include uses such as crop production, haying, grazing, agroforestry or idling land for conservation uses.
- Waste treatment systems: Features excluded under this category include treatment ponds or lagoons that are designed to meet the requirements of the Clean Water Act.
Six additional exclusions added to Friday’s rule for waters of the U.S. include:
- Ditches (including roadside ditches) excavated wholly in and draining only dry land, and that do not carry a relatively permanent flow of water
- Artificially irrigated areas that would revert to dry land if the irrigation ceased
- Artificial lakes or ponds created by excavating or diking dry land that are used exclusively for such purposes as stock watering, irrigation, settling basins or rice growing
- Artificial reflecting pools or swimming pools and other small ornamental bodies of water created by excavating or diking dry land
- Water-filled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand or gravel unless and until the construction operation is abandoned and the resulting body of water meets the definition of waters of the U.S.
- Swales and erosional features (e.g., gullies, small washes) that are characterized by low volume, infrequent or short duration flow
