Court’s Decision Could Affect New ‘WOTUS’ Rule
The Biden administration is moving forward with a proposed Clean Water Act (CWA) regulation that could affect millions of acres of farmland even though the U.S. Supreme Court will hear a case that will clarify what waters the CWA covers, a decision certain to send the U.S. Environmental Protection Agency and the Army Corps of Engineers back (again) to the rulemaking drawing board.
EPA and the Corps of Engineers in December 2021 proposed a Waters of the United States (WOTUS) rule to protect “navigable” waters but offered a regulation that ultimately gives them authority over waters such as drains, ditches, stock ponds and low spots on farmlands. Such an expansive jurisdiction would mean activities near those waters, including moving dirt, plowing fields, building fences and even planting crops, might require CWA permits. Violations of the law carry civil and criminal penalties.
The proposed rule is similar to one promulgated in August 2015 by the Obama administration and decidedly different from a Trump-era regulation that repealed and replaced the 2015 rule. Several federal courts stopped the 2015 WOTUS regulation, with two deeming it illegal.
The problem has been misinterpretations by EPA and the Corps of Engineers of previous Supreme Court decisions in CWA cases. In one of those, the court determined that waters of the United States are: “relatively permanent, standing or continuously flowing bodies of water” that are connected to traditional navigable waters; and wetlands with a continuous surface connection to such water bodies. But one justice, while agreeing with that definition, further defined WOTUS to include wetlands that “possess a ‘significant nexus’ to waters that are or were navigable” or could be made navigable.
EPA and the Corps of Engineers now and in 2015 used the undefined “nexus” – it can mean connection or relationship – to write regulations with a broad view of what waters are jurisdictional. Both rules covered not only navigable waters and waters with an actual connection to navigable waters but upstream waters and intermittent and ephemeral streams such as the kind farmers use for drainage and irrigation and lands adjacent to all those waters. The 2015 rule was so far-reaching it would have put 99% of Missouri and 97% of Iowa, for example, under the agencies’ control.
The Waters Advocacy Coalition, which represents nearly every segment of the economy, including the U.S. pork industry, in comments submitted on the new proposed WOTUS rule, said the regulation “disregards the limits that Congress placed on the scope of federal regulatory authority under the CWA, codifies misinterpretations of relevant Supreme Court precedents, and impermissibly reads the term ‘navigable’ out of the statute.” The coalition asked the administration to withdraw the rule, or, at least, to delay issuing a final regulation until the high court decides the CWA case now before it.
That case, Sackett v. EPA, finally could provide a clearly defined test the agencies, farmers and other stakeholders can use for determining which waters and surrounding lands are covered by the CWA and which are not.
Terry Wolters is a pork producer from Pipestone, Minn., and president of the National Pork Producers Council.
Read More:
