In 1972, Congress attempted, through the Clean Water Act, to keep the waters of the United States clean and safe for consumption, travel and recreation. The Clean Water Act grants the EPA and the U.S. Army Corps of Engineers the authority to decide whether individual bodies of water are subject to regulation. Such bodies of water are designated “waters of the United States” (WOTUS).

The question of what is or is not WOTUS has been an extremely politically charged one since the passage of the act. Different presidential administrations have made agency appointments who have chosen to interpret the label differently. This has resulted in levels of regulation that can be higher – or lower – for a list of bodies of water that can be longer or shorter.

The various types of waters on these lists and can include traditional navigable waters such as rivers and lakes, territorial seas, interstate waters (which are streams and lakes that cross state lines), impoundments such as reservoirs, tributaries and adjacent wetlands such as the everglades or marshes, among others.

In late December, the Biden Administration announced that the definition of WOTUS changed. The new definition replaces President Donald Trump’s Navigable Waters Protection Rule (NWPR), itself a measure to undo much of the Obama Administration’s WOTUS rules.

New WOTUS rule published, but challenges exist

The Biden Administration rule more or less restores a definition that operated prior to 2015. The Trump NWPR was largely supported and praised by farm and ranch interests, who have been consistently critical of efforts going back to the Obama Administration to expand the definition of WOTUS, describing them as covert land grabs to extend EPA authority over most arable and productive land.

The new WOTUS standards are not being well received by ag producers. American Farm Bureau Federation President Zippy Duvall criticized the Army Corps of Engineers and EPA’s replacement of the NWPR with the new WOTUS rules.

“We appreciate the agencies’ attempt to provide needed clarifications of the prior converted cropland exclusion and exemptions for irrigation ditches and stock ponds, but the overall rule is still unworkable for America’s farm families,” Duvall said. “The back and forth over water regulations threatens the progress made to responsibly manage natural resources and will make it more difficult for farmers and ranchers to ensure food security for families at home and abroad.

“AFBF is extremely disappointed in the EPA and Army Corps of Engineers’ new Waters of the United States Rule. Farmers and ranchers share the goal of protecting the nation’s waterways, but they deserve rules that don’t require a team of attorneys and consultants to identify ‘navigable waters’ on their land,” he said at the recent AFBF Convention. “EPA has doubled down on the old significant nexus test, creating more complicated regulations that will impose a quagmire of regulatory uncertainty on large areas of private farmland miles from the nearest navigable water.”

What’s next? Uncertainty is still prevalent, first because the Final Rule will be challenged by a number of stakeholders in federal district courts across the country (as the NWPR was in 2020 and the Obama-era Clean Water Rule was in 2015). Until those legal actions come about, however, it should be noted that on Jan. 18, the rule was published in the Federal Register, which means the rule will be effective on March 20.

by Enrico Villamaino