The EPA has recently released further amendments concerning Waters of the U.S. (WOTUS) guidelines that, while a step in the right direction, still leave much to be desired by ag industry stakeholders. Following the U.S. Supreme Court’s landmark ruling on the Sackett v. EPA case, most of the U.S. ag industry has expected clearer guidance from the powers-that-be about where the line stands on WOTUS.
On Aug. 29, the EPA released its amendments to the “Revised Definition of the Waters of the U.S.” rule published in the Federal Register in January 2023. The January rule, which went into effect in March, included the concerning and ambiguous requirements of a “significant nexus” standard and a broad interpretation of “adjacent wetlands,” the definition of which is the genesis of the Sackett dispute. With the Supreme Court’s ruling in favor of the Sacketts, several parts of the January ruling are no longer valid and need more clarification.
The EPA’s new amendments, unpublished at press time for this article, have removed the significant nexus standard from the guidelines determining federal jurisdiction over bodies of water. According to the pre-publication version of the amendments made to the January 2023 revised WOTUS definition, “Under the decision in Sackett, waters are not jurisdictional under the Clean Water Act based on the significant nexus standard. In addition, under the decision in Sackett, wetlands are not defined as ‘adjacent’ or jurisdictional under the Clean Water Act solely because they are bordering, contiguous or neighboring … [or] separated from other ‘waters of the United States’ by man-made dikes or barriers, natural river berms, beach dunes and the like.”
“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, tribes and partners," said EPA Administrator Michael S. Regan in a news release following the announcement of the amendments. “We’ve moved quickly to finalize amendments to the definition of ‘waters of the United States’ to provide a clear path forward that adheres to the Supreme Court’s ruling.”
“We have worked with EPA to expeditiously develop a rule to incorporate changes required as a result of the Supreme Court’s decision in Sackett,” said Michael L. Connor, assistant secretary of the Army for civil works. “With this final rule, the Corps can resume issuing approved jurisdictional determinations that were paused in light of the Sackett decision.”
The amendments are to be finalized without a public notice and comment period, as it has been determined by the EPA and Department of the Army to be unnecessary under the Administrative Procedure Act. The agencies are hosting three public webinars to provide updates on the definition of “waters of the United States” on Sept. 12, 2023 (3-4 p.m. Eastern time), Sept. 13, 2023 (1-2 p.m. Eastern time) and Sept. 20, 2023 (3-4 p.m. Eastern time).
To learn more about the amendments to the WOTUS guidelines, visit the EPA website.
Ag groups weigh in
Several industry groups have expressed relief that the significant nexus standard has been removed from WOTUS guidelines but are disappointed with the continued lack of clarity and the agencies’ lack of effort to gather input from stakeholders.
Following are some comments from ag industry groups on the EPA’s amendments:
“EPA had a golden opportunity to write a Waters of the U.S. 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.”
—Zippy Duvall, American Farm Bureau Federation president
“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. 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."
—Ted McKinney, National Association of State Departments of Agriculture CEO
"U.S. corn growers are disappointed by EPA’s revised WOTUS rule. The agency failed to open the process to public comment and engagement, which would have been extremely valuable. Instead, the agency has released a rule that does not fully respect the holdings from the recent U.S. Supreme Court case on WOTUS."
—Tom Haag, National Corn Growers Association president
“While NAWG acknowledges that the EPA and Army Corps have taken steps to address the aspects of the 2023 Waters of the U.S. regulation that the Supreme Court's Sackett decision rendered invalid, we cannot help but express our unease with the outcome. While we recognize the intent to bring more clarity to wheat growers concerning waters subject to Clean Water Act jurisdiction, we are concerned about the repercussions for our members' farming operations. The intricate 'significant nexus' standard posed challenges for our growers, both in comprehension and alignment with the Clean Water Act.”
—Chandler Goule, National Association of Wheat Growers CEO
“The Fertilizer Institute is disappointed in the continued lack of clarity in EPA’s newly released WOTUS rule, including the agency’s disregard both for the procedural need to invite public input for consideration and for May’s Supreme Court ruling determining which bodies of water fall under federal jurisdiction. It is unclear how a half-baked rule will provide any amount of durability or certainty to the regulated community. In this regard, the guidance and implementation tools that EPA says it plans to develop are critical to both the fertilizer industry and its farmer customers.”
—Corey Rosenbusch, The Fertilizer Institute president and CEO