The US Environmental Protection Agency (EPA) and the Department of the Army on Dec. 30 announced a new rule defining Waters of the United States (WOTUS), restoring protections that were in place prior to 2015 under the Clean Water Act (CWA) but with “updates to reflect existing Supreme Court decisions, the latest science, and the agencies’ technical expertise.”

According to the two agencies, the final rule “returns to a reasonable and familiar framework founded on the pre-2015 definition” that covers those waters that Congress sought to protect in the CWA, including traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters.

“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,” said EPA Administrator Michael S. Regan.

“The rule’s clear and supportable definition of waters of the United States will allow for more efficient and effective implementation and provide the clarity long desired by farmers, industry, environmental organizations, and other stakeholders,” added Assistant Secretary of the Army for Civil Works Michael L. Connor.

Despite those assurances, numerous ag groups quickly voiced their opposition to the new WOTUS definition, including The Fertilizer Institute (TFI), the American Farm Bureau Federation (AFBF), and the National Association of State Departments of Agriculture (NASDA).

At issue is the new rule’s approach to streams, wetlands, lakes, and ponds – water bodies that are not directly connected to navigable waters, but could have a “significant nexus” to them. The “significant nexus” standard stems from a divided US Supreme Court decision in 2006 that formed the basis for the Obama-era WOTUS definition in 2015, which the Trump administration scrapped in 2019 and then replaced in 2020 with the Navigable Waters Protection Rule (NWPR).

While criticized by environmental groups, the NWPR – which scaled back the types of waters falling under CWA jurisdiction – was strongly supported by both TFI and the Agricultural Retailers Association (ARA). Under the Biden administration, however, EPA and the Army announced in June 2021 that they intended to draft yet another WOTUS definition that built upon the pre-2015 rule, the Obama-era rule, and the NWPR.

In the new rule, according to Bloomberg Law, EPA tried to clarify “significant nexus” by adding more criteria to the test, including a water body’s distance to a navigable water, the frequency and duration of water flow, and a smaller body’s contribution of flow and sediment to a navigable water body.

These factors determine whether a smaller water body has a “material influence” on a larger one, and therefore falls under CWA protection, the new rule states. The EPA also included a new framework for evaluating waterway and wetlands protections, including whether the wetlands are “relatively permanent” and if the waters are “similarly situated” with other jurisdictional waters in a region or in their “catchment area,” according to Bloomberg Law.

But critics said these requirements essentially create a new legal standard that doesn’t add much clarity for farmers, property owners, and industry, and offers more opportunities for regulatory agencies to make judgement calls based on technical and policy considerations.

“The number one thing industry needs from regulatory bodies is clarity and certainty. The final WOTUS rule provides neither,” said TFI President and CEO Corey Rosenbusch in a Dec. 30 statement. “Many of our member companies must plan years in advance to obtain all necessary permits in accordance with the CWA. We need regulatory certainty and predictability and have a strong interest in ensuring that the definition of WOTUS is clearly defined and consistently implemented across the nation.”

Rosenbusch also referenced a pending Supreme Court decision in Michael Sackett v. EPA, a pivotal case that involves an Idaho couple that for 15 years has been prevented from building a home on their 0.63-acre property in Priest Lake, Idaho, because EPA claims part of the property contains wetlands and is therefore subject to regulation under the CWA. Oral arguments were presented in October, and the Supreme Court is expected to issue a ruling early this year.

“In February we joined a chorus of other organizations and many members of Congress in urging the agencies to delay the rulemaking until after the Supreme Court has issued its ruling,” Rosenbusch said. “The ruling will likely negate or render irrelevant significant elements of the WOTUS rule and create even more confusion for businesses and landowners throughout the country.”

NASDA also issued a statement on Dec. 30, stressing the role of states in regulating non-navigable waters and arguing that the CWA establishes limits on federal jurisdiction and the role of the federal government to regulate interstate commerce.

“The EPA’s latest rule on defining waters of the United States is a statement of federal overreach that ignores states’ authority to regulate intrastate water quality and the CWA’s statutory mandate for cooperative federalism,” said NASDA CEO Ted McKinney. “In turn, 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.”

AFBF President Zippy Duval added his voice to the debate as well, saying he was “deeply disappointed” in the new rule. “Instead of making federal regulations more clear, the rule reinstates confusing standards that have already caused decades of uncertainty and litigation,” he said. “Most importantly, the rule gives the government sweeping authority over private lands and will require teams of lawyers and consultants for common and necessary farming activities.”