WOTUS Update

Legal challenges and disputes continue related to EPA and Army Corps of Engineers’ regulation of wetlands and waters in the United States. Some developments, according to Bloomberg:

• Industry groups and 26 states are pursuing legal action to clarify the terms of the EPA’s Waters of the United States (WOTUS) rule and the implications of the US Supreme Court’s May ruling in Sackett v. EPA.
• The legal actions by the states claim EPA and the Army Corps of Engineers violated the Clean Water Act and Administrative Procedure Act when updating the WOTUS rule to align with the Sackett ruling.
• The Sackett ruling determined that only relatively permanent waters directly connected to larger navigable water bodies qualify as “waters of the U.S.”
• The states argue that the agencies did not provide sufficient analysis or explanation of the scope of federal jurisdiction in response to the Sackett decision, leading to concerns about their commitment to following it faithfully.
• EPA revised its WOTUS rule in August to reflect the Sackett ruling, which reduced the extent of federal wetlands protections.
• Brenda Mallory, Chair of the Council on Environmental Quality, expressed concerns that the Sackett decision weakens environmental protections and increases the costs of water treatment.
• The amended complaints by West Virginia and 23 other states argue that the August rule undermines state control over land management and fails to define key terms like “relatively permanent” and “continuous surface connection.”
• Texas and Idaho argue that the rule is illegal because it oversteps state sovereignty, asserts federal authority over non-navigable waters, and did not allow for a notice-and-comment period, violating the Administrative Procedure Act.
• EPA claims it used the “good cause” exception under the APA to quickly finalize its updated rule after the Sackett ruling, as it deemed a final WOTUS definition urgent.
• Legal experts suggest that if West Virginia’s litigation is successful, it could force the agencies to clarify terms and demonstrate adherence to the Sackett ruling.
• Some argue that the ongoing legal disputes may further weaken federal wetlands protections and are part of a larger political agenda by Republican attorneys general to challenge the EPA’s authority.
• Eighteen industry groups, including mining, fossil fuels, construction, and agriculture organizations, joined the Texas lawsuit, while many other states and organizations have also become involved in the legal proceedings.

Bottom line: The legal battles are centered around the definition and regulation of wetlands and waters in the United States, with multiple states and industry groups challenging the EPA’s actions in response to the Sackett ruling. These disputes have implications for the extent of environmental protections and state sovereignty over land and water management.

Stay up-to-date on policy changes impacting farmers and landowners with Pro Farmer's expert farm policy insights. View membership options.