December 30, 2022
EPA announced a new definition for “waters of the United States” strikingly similar to the WOTUS designation in place before 2015.
“For too long farmers have had to navigate inconsistency and uncertainty in complying with the Clean Water Act,” Agriculture Secretary Tom Vilsack says. “Today’s announcement by the EPA and the Army Corps of Engineers clarifying the definition of ‘Waters of the United States’ provides American farmers with the clarity and consistency needed to effectively manage their operations and be stewards of their natural resources. USDA will be a partner to EPA in sharing information with farmers and ranchers around this important issue and has a suite of conservation programs that can provide producers with the resources they need to implement conservation practices that contribute to clean water and healthy waterways.”
Agriculture leaders were not enthusiastic about the announcement. The National Cattleman’s Beef Association had been lobbying EPA to include agricultural exclusions for small, isolated and temporary features common on farms and ranches.
“For too long, farmers and ranchers have dealt with the whiplash of shifting WOTUS definitions,” NCBA Chief Counsel Mary-Thomas Hart said. “Today, the Biden administration sought to finalize a WOTUS definition that will protect both our nation’s water supply and cattle producers across the nation. While the rule retains longstanding, bipartisan WOTUS exclusions for certain agricultural features, it creates new uncertainty for farmers, ranchers, and landowners across the nation.”
The Clean Water Act of 1972 gives the federal government authority to limit pollution in major bodies of water as well as other streams and wetlands that drain into them. Two Supreme Court cases in the early 2000s created confusion over which waterways were subject to the Act’s provisions.
In 2015, the Obama administration issued the Waters of the United States rule to clarify and expand the EPA’s authority to combat pollution. While environmental groups praised the decision, agriculture leaders said it would create undue burdens for farmers and ranchers. That led to multiple court cases with conflicting rulings.
The Trump Administration later threw out the Obama rule and created its own WOTUS definition. That rule was later thrown out in court.
Complicating matters now is a case the Supreme Court is set to hear that may limit the EPA’s regulatory authority. The timing of the new WOTUS rule is seen by many as a Biden administration attempt to get ahead of that ruling.
“The National Association of Wheat Growers is deeply concerned that the EPA and U.S. Army Corps rushed to get this revised definition out prior to the end of the year instead of waiting for the decision in the Sackett case before the Supreme Court,” NAWG CEO Chandler Goule said. “While we continue reviewing the final rule, since the rulemaking process was announced last year, NAWG has stressed that farmers need clarity regarding jurisdiction, recognize important agricultural water features, and more long-term certainty from the courts and administrations.”
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