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WOTUS continues to be problematic

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outlook-logo-21-perry.jpgWOTUS. The gift that keeps on giving content for this annual article by agricultural lawyers. 

The federal Clean Water Act prohibits discharges of pollutants to “waters of the United States” but when Congress passed the act in 1970, it failed to define the term. The past 50 years have left landowners, developers, policymakers, and courts trying to determine the meaning of this phrase. 

This year, the Environmental Protection Agency and U.S. Army Corps of Engineers issued a final (WOTUS) rule defining “waters of the United States.” Named the Navigable Waters Protection Rule (NWPR), it takes a narrower approach than the 2015 Obama Administration WOTUS rule.  In particular, the rule includes four categories of waters considered WOTUS and, therefore, subject to federal jurisdiction:  

(1) the territorial seas, and waters currently used, previously used, or that may be susceptible to use in interstate or foreign commerce, including water subject to the ebb and flow of the tide;  

(2) tributaries;  

(3) lakes, ponds, and impoundments of jurisdictional waters; and  

(4) wetlands adjacent to the waters listed in (1)-(3).   

The NWPR also expressly excludes various categories of waters from being deemed a water of the United States, including groundwater, ephemeral water features, prior converted cropland, and any water not falling within one of the four jurisdictional categories. Proponents of the new rule praised its effort to draw clearer lines between what was – and was not – a WOTUS, while opponents said it drastically cut environmental protections. 

The ink was hardly dry on the NWPR when lawsuits began flooding into courthouses across the country. Interestingly, both sides of the aisle filed lawsuits over the rule; some claimed the NWPR was too narrow, and others argued the NWPR was too broad. These lawsuits continue to make their way through various court systems at this time.  Currently, the NWPR is in effect in every state with the exception of Colorado, where a judge issued an injunction pending litigation challenging the rule. 

Where do we go from here?  The change in administration in January could drastically impact how (or if) the NWPR impacts agriculture. Will a Biden administration EPA choose to go back to the drawing board and propose a new WOTUS rule or simply leave NWPR intact and focus on other priorities? How will EPA and the US Army Corps of Engineers under a Biden administration handle the pending lawsuits? 

In summary, although we have a regulatory definition of WOTUS as this article goes to press (mid-December 2020), the litigation and uncertainty surrounding the definition of Waters of the United States will likely continue into the new year. While the gift that keeps on giving for law professors, this type of uncertainty is frustrating for landowners and industries including agriculture. Perhaps Christmas 2021 will allow us to write an article with more clarity and finality on this topic.  

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