We have a new definition for the Waters of the U.S. — at least for now. The 514-page rule was released by EPA and the Army Corps of Engineers on Friday.
The new rules largely revive a definition of WOTUS released during the Reagan era. It’s been updated to accommodate limits the Supreme Court placed on federal jurisdiction during the 36 years that have followed. The new rule would give federal protection to large waterways, such as interstate rivers and streams, and adjacent wetlands.
Wetlands would be considered adjacent if they are connected to those larger waterways with “relatively permanent” surface water connections, or if they have a “significant” hydrologic or ecological “nexus” to those protected tributaries.
Farm Journal Washington Analyst Jim Wiesemeyer says the latest definition is an effort by the Biden administration to find a “durable” solution to protect wetlands and streams, an issue that has been hotly debated since the Clean Water Act’s passage in 1972. He says some people predict there will be a legal backlash from farmers, developers and businesses who will argue the regulation is inconsistent with the Clean Water Act.
Groups not happy with the plan include the National Cattlemen’s Beef Association. Mary-Thomas Hart, chief counsel with NCBA, says: “While we did receive some really helpful agricultural exemptions for stock ponds, drainage ditches and prior converted cropland, the rule does leave open the possibility to regulate or find federally jurisdictional those isolated features or ephemeral features. It’s a partial win. So, while farmers and ranchers are going to get some really helpful agricultural exemptions, they’re still going to be subject to additional regulatory uncertainty.”
What’s key to point out is the Supreme Court is currently reviewing EPA’s jurisdiction under the Clean Water Act. This is not the final WOTUS definition. It is in place until EPA proposes a new one based on field hearings and a ruling from the high court. This current rule takes effect 60 days after it is formally published in the Federal Register.
