The US EPA and Department of the Army on Aug. 29 announced a final rule amending the definition of “Waters of the United States” under the Clean Water Act (CWA). The revised rule comes three months after the US Supreme Court limited the agencies’ regulatory authority in its May 25 decision in Sackett v. EPA (GM May 26, p. 1).
The revised rule eliminates the “significant nexus” test that was part of the Biden Administration’s latest WOTUS definition, and also states that wetlands protected under the CWA must have a continuous surface connection to navigable waterways as required by the US Supreme Court’s ruling in Sackett.
The new rule implements the court’s opinion that the CWA protects only waters and wetlands that are relatively permanent and have a continuous surface connection to navigable waterways, leaving wetlands that aren’t directly connected to large rivers, streams, and coastlines either unregulated or regulated only by states.
“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. “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.”
EPA and the Corps said the changes are “limited” and apply only to those parts of the Biden Administration’s WOTUS definition that the Supreme Court ruled as invalid. The agencies said the Supreme Court decision “created uncertainty” for CWA implementation, and the revised rule will take effect immediately “to provide clarity and a path forward consistent with the ruling.”
EPA finalized the rule without issuing a draft for public comment, prompting criticism from several trade groups. The agency did so using the rarely-used “good cause” exception to notice-and-comment under the Administrative Procedure Act, which allows federal agencies to forgo public comment when officials think that a rule update is sufficiently urgent.
“The Fertilizer Institute (TFI) 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,” said TFI President and CEO Corey Rosenbusch in an Aug. 29 statement.
“It is unclear how a half-baked rule will provide any amount of durability or certainty to the regulated community,” Rosenbusch continued. “A recent survey of TFI members found that the number one concern for companies in the fertilizer industry surrounds regulatory certainty. By shortcutting the regulatory process, EPA fails to satisfy its stated intent. We want clear rules that facilitate long-term planning and the capital investments that allow us to continue providing the critical nutrients that feed the crops that feed our communities.”
“US corn growers are disappointed by EPA’s revised WOTUS rule,” said National Corn Growers Association President Tom Haag. “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 US Supreme Court case on WOTUS.”
“EPA had a golden opportunity to write a WOTUS 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,” said Zippy Duvall, President of the American Farm Bureau Federation.
“We’re pleased the vague and confusing ‘significant nexus’ test has been eliminated as the Supreme Court dictated,” Duvall added. “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.”
“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,” said Ted McKinney, CEO of the National Association of State Departments of Agriculture. “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.”
The EPA and Corps will host a public webinar on Sept. 12 to provide information on the updated rule, but the link provided on EPA’s webpage indicates registration for the webinar is already closed. The agencies also plan to host listening sessions this fall with co-regulators and stakeholders to address any issues that may arise from the new rule.