May 3, 2023
It’s difficult to imagine any issue that has captured more attention and time and resources of U.S. farmers and agricultural groups than the debate over the Waters of the U.S. or WOTUS definition in the Clean Water Act.
Since passage in 1972 the WOTUS definition in the amendments to the Federal Water Pollution Control Act of 1948 has been a lightning rod for farm and environmental groups debating how far the federal government should go in protecting water.
“This term is central for interpreting the Clean Water Act because only those waters that fall under the definition of WOTUS are going to be under Clean Water Act jurisdiction,” said Brigit Rollins, staff attorney for the National Agricultural Law Center. “Therefore, knowing what WOTUS is is crucial to carrying out the Clean Water Act.”
Rollins discussed the legal issues surrounding WOTUS and the Clean Water Act during Part I of a webinar series on the topic held by the National Agricultural Law Center in March. The webinar for the second part of the discussion is scheduled for July 19.
Since Rollins spoke on March 15, Congress passed a resolution overturning the latest WOTUS ruling issued by the Environmental Protection Administration, which went into effect on March 20. But, as expected, President Biden vetoed the resolution. Neither the House nor the Senate appear to have the votes for the two-thirds majority needed to overturn the veto.
Meanwhile, U.S. District Court Judge Daniel Hovland in North Dakota blocked the WOTUS rule from taking effect in 24 states, bringing the total number of states where the rule has been enjoined to 26, according to an update in the National Agricultural Law Center’s bi-monthly e-newsletter, The Feed.
That means residents of 24 other states must follow the 2023 WOTUS rule, which sets out five categories of Waters of the U.S., including some definitions that were not previously applied to WOTUS over the 50-year history of the Clean Water Act.
“First is traditional navigable waters used for interstate or foreign commerce, the territorial seas and interstate waters,” said Rollins. “We saw all those in the 1980s,” when the first challenges of the Clean Water Act’s definition of Waters of the United States were brought.
The second includes impoundments of waters otherwise identified as a Water of the U.S., except for impoundments of water identified under the fifth category of the new WOTUS rule.
“Now this is somewhat different from the 1980s where the 1980s regulations said the impoundments of any waters otherwise identified as WOTUS will also be considered a WOTUS,” she said. “Here only these impoundments of water that fall into one of these other three categories will be considered a WOTUS. So that’s a slight difference.
“Then we get into the third category where we can see EPA is trying to use the Rapanos decision for guidance as to how approach this third definition.” (The 2006 Supreme Court four-justice plurality opinion in Rapanos v. U.S. said waters of the U.S. include non-navigable waters only if they are “relatively permanent, standing or continuously flowing bodies of water” and wetlands that share a “continuous surface connection” with such waters.)
“EPA says those include tributaries of traditional navigable waters or impoundments that are 1) relatively permanent, standing or continuously flowing bodies of water or 2) that alone or in combination with similarly situated waters in the region significantly affect the chemical, physical or biological integrity of traditional navigable waters.”
The fourth category includes wetlands adjacent to traditional navigable waters; a relatively permanent, standing or continuously flowing impoundment or tributary; an impoundment or tributary if the wetlands alone or in combination with similarly situated waters have a significant nexus with a traditional navigable water.
The fifth category is interstate lakes or ponds, streams or wetlands that do not fall into any of the above categories provided the water shares either a continuous surface connection or a significant nexus with a WOTUS.
“So those are the five categories in this new rule,” she said. “They are similar to the 1980s categories, but where the 1980s categories were looking at whether this water is degraded or destroyed and will it impact those other waters used to facilitate commerce; here we have the Rapanos tests coming in instead.”
EPA also provides a number of definitions of terms such as “significantly affect,” “adjacency,” “similarly situated” and “functions and factors” that help determine whether a water significantly affects a navigable water.
The new rule also spells out several exclusions, including waste treatment systems, prior converted cropland, ditches such as roadside ditches, artificially irrigated croplands such as rice fields that revert to dryland after irrigation, artificial lakes or ponds, artificial reflecting or swimming pools, waterfilled depressions resulting from construction activity and swales and erosional features such as gullies or small washes.
At least three legal challenges have been filed since the EPA issued the new rule on Dec. 30: State of Texas vs. EPA; Kentucky Chamber of Commerce vs. EPA; and State of West Virginia vs. EPA. The latter was filed in North Dakota because a federal judge there had issued an injunction against the 2015 EPA WOTUS rule.
“There are three main claims raised in each of these cases,” said Rollins. “The first is the 2023 rule impermissibly expands the Clean Water Act jurisdiction; the second is the 2023 rule violates the Tenth Amendment of the U.S. Constitution; and third, the rule violates the Major Questions Doctrine.
“The latter, depending on how the courts rule on it, could set a precedent that goes beyond WOTUS. The Major Questions Doctrine will be interesting because it says if a government agency acts on an issue of national significance the action has to be founded on a clear congressional authorization.”
The elephant in the courtroom, so to speak, is the Sackett vs. EPA case, which was heard by the Supreme Court last October. The primary question in Sackett, Rollins said, is whether the Rapanos decision should be revisited to adopt the plurality’s relatively permanent test for WOTUS jurisdiction under the Clean Water Act?
“The Supreme Court has yet to issue a ruling,” she said. “This is kind of the ticking time bomb: What is the court going to say because it is very likely this ruling will have a huge impact on EPA’s new WOTUS rule.”
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