A coalition of 45 agriculture and industry trade groups, including The Fertilizer Institute (TFI), on July 24 sent a letter to the US Environmental Protection Agency (EPA) and Army Corps of Engineers demanding that the agencies include specific language in their rewrite of the Waters of the United States (WOTUS) rule, which is expected to be published on Sept. 1, 2023.
EPA and the Corps are planning to rewrite WOTUS in response to the US Supreme Court’s May 25 ruling in Sacket v. EPA (GM May 26, p. 1), which limited the agencies’ regulatory authority over wetlands under the Clean Water Act (CWA). The ruling countered the “significant nexus” standard that guided EPA’s latest WOTUS definition, which was published in late December (GM Jan. 6, 2023) and went into effect on March 20.
In its letter, the Waters Advocacy Coalition argued that the agencies’ “truncated” timeline for the new rule indicates that public comments will likely not be solicited and the agencies will instead simply strike the “significant nexus” language and the rule’s definition of “adjacent” waters, steps that the coalition said would not be a “defensible response to Sackett or an appropriate approach to this rulemaking.”
The letter further states that the agencies must adhere to the “core holdings” in Sackett as they complete the WOTUS rewrite, including eliminating the standalone interstate waters and interstate wetlands category; adopting an interpretation of “relatively permanent, standing, or continuously flowing bodies of water” that is consistent with Supreme Court precedent; excluding ditches; clarifying the rule’s definition of “adjacent” to clarify that wetlands are jurisdictional only when they are indistinguishably part of another WOTUS; and retaining the rule’s codified exclusions.
The coalition also urged the agencies to maintain that administrative jurisdictional decisions (AJDs) made under the Navigable Waters Protection Rule (NWPR), the Trump Administration’s version of the WOTUS rule, remain valid and cannot be reexamined retroactively.
A series of meetings to discuss amendments to the WOTUS rule are scheduled in the coming days between the Office of Management and Budget (OMB) and interested parties, including the Waters Advocacy Coalition, the American Road and Transport Builders Association, the Responsible Industry for a Sound Environment, the National Mining Association, Edison Electric Institute, the National Association of Homebuilders, the National Stone and Gravel Association, and the American Farm Bureau Federation.