On the final business day of 2022, the EPA and Army Corps of Engineers announced a final rule establishing a definition of “Waters of the U.S.” (WOTUS). The rule makes another attempt to define which waterways may be subject to regulation under the Clean Water Act.
Controversy has surrounded Clean Water Act regulatory efforts for decades. Most recently, the Obama administration implemented the 2015 Clean Water Rule in 2015. Following court rulings, that rule was repealed in late 2019 and then replaced in 2020 with the Trump administration’s Navigable Waters Protection Rule. However, that rule was vacated In August 2021, by order of the U.S. District Court for the District of Arizona.
In November 2021, the EPA announced a proposed rule to reestablish the pre-2015 definition of waters of the U.S. The final rule will be effective 60 days after it is published in the Federal Register.
The year-end 2022 announcement comes before release of a U.S. Supreme Court ruling on a lawsuit (Sackett v. EPA), expected in early 2023, and most agricultural organizations expressed disappointment in both the scope and timing.
“NMPF is disappointed that once again dairy farmers, who every day strive to be leaders in environmental stewardship, may need to live under a WOTUS rule that is cumbersome, unclear and overly complicated,” said Jim Mulhern, president and CEO of the National Milk Producers Federation (NMPF). “Because the EPA’s most recent iteration fails to resolve what is now a 50-year struggle to define what constitutes a water body subject to federal regulation under the Clean Water Act, our members will face continued uncertainty as they attempt to comprehend and comply with unclear regulations.“
Mulhern noted that the latest rule is not a complete return to the rule adopted in 2015, citing EPA’s list of exemptions that “at least try to address some of agriculture’s concerns over lack of clarity.”
According to an agricultural “fact sheet,” the waters of the U.S. definition does not affect the longstanding activity-based agricultural permitting exemptions provided by the Clean Water Act. Activities that are exempt from section 404 permitting include:
- 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
The final rule codifies some agricultural characteristics excluded from regulation, including prior converted cropland as long as it is available for agricultural commodity production, and waste treatment systems, including treatment ponds or lagoons that are designed to meet the requirements of the Clean Water Act.
For a full list of exclusions, check the ag fact sheet.
With the EPA release of the rule, Mulhern said his organization anticipates continued litigation and expects congressional action may be necessary to end decades of uncertainty.
“It’s now clear that four successive administrations of both political parties have been unable to resolve this matter in a way that satisfies the broad range of stakeholders and provides long-term regulatory certainty which is badly needed,” he said. “Depending on the outcome of the Sackett case this spring, it may be time for Congress to step in in a bipartisan manner to provide clarity regarding which bodies of water are under the jurisdiction of the Clean Water Act.”
Other agricultural organizations also expressed disappointment.
“The number one thing industry needs from regulatory bodies is clarity and certainty. The final WOTUS rule provides neither,” said Corey Rosenbusch, president and CEO of the Fertilizer Institute.
“The EPA’s latest rule on defining [waters of the U.S.] is a statement of federal overreach that ignores states’ authority to regulate intrastate water quality and the Clean Water Act’s statutory mandate for cooperative federalism,” said Ted McKinney, CEO of the National Association of State Departments of Agriculture. “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.”
Check out these related articles on the agproud.com website.
Federal agencies end year with more WOTUS changes
