WOTUS Definition Revised

On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and Department of the Army (the agencies) issued a final rule to amend the final “Revised Definition of ‘Waters of the United States’” rule, published in the Federal Register on January 18, 2023. This final rule conforms the definition of “waters of the United States” to the U.S. Supreme Court’s May 25, 2023, decision in the case of Sackett v. Environmental Protection Agency. Parts of the January 2023 Rule are invalid under the Supreme Court’s interpretation of the Clean Water Act in the Sackett decision. Therefore, the agencies have amended key aspects of the regulatory text to conform it to the Court’s decision. Read more about the conforming rule.

The conforming rule will become effective upon publication in the Federal Register. Where the January 2023 Rule is not enjoined, the agencies will implement the January 2023 Rule, as amended by the conforming rule. Please visit the Rule Status page for additional information about the status of the January 2023 Rule, as amended, and litigation. The information below is provided for informational purposes only. Visit the “Current Implementation” page for more information about current implementation of the definition of “waters of the United States.”

With the announcement of the final definition of the Water of the United States (WOTUS) rule. The National Association of Wheat Growers (NAWG) released this statement:

“While NAWG acknowledges that the EPA and Army Corps have taken steps to address the aspects of the 2023 Waters of the US regulation that the Supreme Court's Sackett decision rendered invalid, we cannot help but express our unease with the outcome," said NAWG CEO, Chandler Goule. "While we recognize the intent to bring more clarity to wheat growers concerning waters subject to Clean Water Act jurisdiction, we are concerned about the repercussions for our members' farming operations. The intricate 'significant nexus' standard posed challenges for our growers, both in comprehension and alignment with the Clean Water Act. NAWG is disappointed both agencies are proceeding with these regulatory adjustments without public consultation on the proposed changes prior to finalizing the regulation.”

American Farm Bureau Federation President Zippy Duvall commented on the Biden Administration’s revised Waters of the U.S. Rule.

“EPA had a golden opportunity to write a Waters of the U.S. 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.

“We’re pleased the vague and confusing ‘significant nexus’ test has been eliminated as the Supreme Court dictated. 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.

“Farmers and ranchers share the goal of protecting the resources they’re entrusted with. They deserve a rule that respects farmers as partners in that effort.”

National Cattlemen’s Beef Association (NCBA) Chief Counsel Mary-Thomas Hart released a statement following the Environmental Protection Agency’s revised Waters of the United States (WOTUS) rule that is intended to conform with the Supreme Court’s decision in Sackett v. EPA:

“The entire cattle industry breathed a sigh of relief when the Supreme Court curtailed the EPA’s overreach under the Clean Water Act. Today’s revised WOTUS definition is an important step toward bringing the EPA more in line with the Supreme Court’s ruling. NCBA looks forward to working with the agency to protect farmers and ranchers from burdensome regulations and provide them with lasting certainty on WOTUS.

“NCBA was proud to lead the fight against burdensome WOTUS rules from Congress to the courts. We will continue analyzing this latest development to ensure that cattle producers are protected.”

The National Corn Growers Association (NCGA) expressed disappointment with the revised Waters of the U.S. (WOTUS) rule that was issued today by the Environmental Protection Agency (EPA) and the Army Corps of Engineers.

“U.S. corn growers are disappointed by EPA’s revised WOTUS rule,” said NCGA 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 U.S. Supreme Court case on WOTUS. ”

EPA released the revised rule after the U.S. Supreme Court issued a ruling in Sackett v. EPA earlier this summer that narrowed the scope of the Clean Water Act’s jurisdiction by, among other things, a unanimous decision that “significant nexus” was unlawful.

Source: U.S. Environmental Protection Agency, NAWG,  American Farm Bureau, NCBA, NCGA