The EPA and the U.S. Army Corps of Engineers released an amended “Waters of the U.S.” (WOTUS) rule, Aug. 29. The new rule revises the January 2023 definition to eliminate the “significant nexus” standard to determine when waters or wetlands are covered by the Clean Water Act (CWA), as well as the definition of “adjacent wetlands.”
The agencies said the amended rule will interpret the phrase “waters of the United States” consistent with a U.S. Supreme Court decision (Sackett v. EPA) issued three months ago. On May 25, the U.S. Supreme Court issued a unanimous decision limiting the EPA’s authority to regulate U.S. waterways under the CWA.
According to heads of EPA and the Army Corps of Engineers, the amendments are limited and change only parts of the 2023 rule that were invalid under the Supreme Court decision. The rule will become effective upon publication in the Federal Register. A pre-publication version and summary fact sheet are available.
There remains litigation related to the original rule published last January. In April, U.S. District Court Judge Daniel Hovland, in the U.S. District Court for the District of North Dakota, granted a preliminary injunction blocking the implementation of the WOTUS rule in 24 states. Prior to that, the U.S. District Court for the Southern District of Texas issued a limited injunction blocking implementation of the rule in Texas and Idaho.
Addressing those lawsuits, the agencies will implement amendments in 23 states, the District of Columbia and the U.S. territories. In the other 27 states and for certain parties, the agencies are interpreting WOTUS consistent with the pre-2015 regulatory regime and the Supreme Court's decision until further notice.
A public webinar will be held on Sept. 12 to provide further updates. Participation capacity is limited and registration is required. The agencies also plan to host listening sessions this fall.
Ag groups respond
In an alert to members, the National Milk Producers Federation (NMPF) said the updated rule “limits federal jurisdiction to traditional navigable waters and adjacent wetlands with continuous surface connection to those waters, providing greater clarity and certainty for dairy farmers.”
However, while the new rule is “a significant step in the right direction,” lingering ambiguity remains, requiring some dairy producers to hire consultants to determine if a waterway is subject to regulation.
“The new rule will have an immediate impact on dairy farmers by reducing lands with water features subject to the Clean Water Act and providing improved clarity and certainty to which lands with water features are regulated,” according to the email alert. “That doesn’t mean every conceivable WOTUS question is answered.”
Other U.S. agricultural groups expressed disappointment in the amended WOTUS rule. Ted McKinney, with the National Association of State Departments of Agriculture (NASDA), shared the frustration.
“The ruling in Sackett v. EPA was a chance for EPA and the Army Corps to correct a deeply flawed, prematurely released rule and work to truly improve water quality outcomes,” he said. “It is baffling that the revised rule does not accurately address all the issues and questions raised by the Supreme Court in the Sackett decision, nor does it address many of the questions stakeholder groups raised about the WOTUS rule EPA released at the end of last year."
