A new rule defining “waters of the United States” under the Clean Water Act maintains longstanding exemptions for farming activities but also trims back an exclusion for prior converted cropland that had been in the Trump administration’s Navigable Waters Protection Rule.
The 514-page rule released by EPA and the Army Corps of Engineers on Friday is the third attempt by a presidential administration in seven years to come up with a definition of WOTUS that can stand the test of time.
The Obama administration issued a rule in 2015, which the Trump administration repealed in 2019 and then replaced in 2020. But both rules were struck down in the courts, and the Biden administration returned to “pre-2015” regulations and guidance when it took office.
“The final rule restores essential water protections that were in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters,” the two agencies that jointly administer the Clean Water Act say in a joint news release.
“As a result, this action will strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies, and downstream communities.
Under the new rule, those protected waters include ephemeral streams, which flow in response to precipitation. The Trump administration's 2020 rule categorically excluded ephemeral streams from regulation.
“There is overwhelming scientific information demonstrating the effects ephemeral streams can have on downstream waters and the effects wetlands can have on downstream waters when they do not have a continuous surface connection,” the rule says.
Using the Supreme Court’s Rapanos ruling from 2006 as a guide, the agencies said they would recognize as jurisdictional those waters with “relatively permanent” flows but also those that have a “significant nexus” to navigable waters. That test was advanced by former Justice Anthony Kennedy and agreed to by four other justices who rejected the narrower “relatively permanent” standard outlined by the late Justice Antonin Scalia.
The rule takes effect 60 days after it is formally published in the Federal Register.
EPA and the Corps say they will use the feedback from a series of regional roundtables on WOTUS implementation to help regulators address geographic differences, but also said that their field staff “have extensive experience making jurisdictional determinations using the relatively permanent standard and the significant nexus standard. Field staff have gained extensive familiarity and practical experience with the national and regionally specific field methods, literature, datasets, models, and tools that are required to make such determinations, resulting in increased efficiencies over time.”
The agencies issued a “joint coordination memo” with USDA and said they would “enhance consideration of regional differences in (WOTUS) implementation” through training and continued development of methods to assess streamflows in the Great Plains and Western Mountains; Northeast and Southeast; and the Arid West.
EPA and the Corps also issued a separate joint coordination memo “to ensure the accuracy and consistency of jurisdictional determinations” under the final rule.
In addition to possible court challenges, the future of the latest rule could be muddied further because the Supreme Court is expected to issue an opinion in the Sackett case early in the new year, which could force EPA and the Corps to make some adjustments.
In October, the court heard arguments in that case, which raises the issue of the CWA’s standard for “adjacent wetlands.” An EPA spokesperson said the agency could not comment on the pending litigation, but that the agencies “may consider further refinements in the future to address implementation.”
The rule refers to Sackett once, to say that the case “is not a direct challenge to any of the rules defining ‘waters of the United States,’ but instead presents the question of the (Clean Water) Act’s jurisdictional standard for adjacent wetlands in the context of a challenge to an EPA administrative compliance order for the unauthorized discharge of a pollutant into ‘waters of the United States.’”
EPA and the Corps changed language from the proposal “to be clearer that a wetland adjacent to but lacking a continuous surface connection to a tributary that is relatively permanent must be assessed under the significant nexus standard. For example, if a wetland is ‘neighboring’ to a tributary that is relatively permanent, and thus ‘adjacent,’ but lacks a continuous surface connection to that tributary, the wetland would need to be assessed under the significant nexus standard in order to determine its jurisdictional status.”
The new rule continues to exclude prior converted cropland from regulation, but in a new way that farmers may not like.
“Generally speaking, the 2020 NWPR’s approach to prior converted cropland substantially reduced the likelihood that prior converted cropland would ever lose its excluded status,” the rule says.
“Under the 2020 NWPR, prior converted cropland maintained its excluded status if it was used at least once in the five years” for any of a wide range of agricultural purposes preceding a wetlands jurisdictional determination, the rule says. “These wetlands could then have been filled and paved over during that five-year term without triggering any Clean Water Act regulatory protection.”
The new rule adopts USDA’s interpretation, used to implement the 1985 Swampbuster program enacted in the 1985 farm bill. Under the new rule, “the exclusion would cease upon a change of use, which means that the area is no longer available for the production of agricultural commodities.”
“Implementing ‘change in use’ consistent with USDA’s implementation of the Food Security Act fulfills the exclusion’s purpose of promoting consistency among federal programs affecting wetlands,” the rule says.
In an interview, EPA Agricultural Adviser Rod Snyder told Agri-Pulse that farmers will be able to use their land in a variety of ways without losing the PCC exclusion, including idling it for conservation purposes or to recover from disasters; nutrient retention, and other uses.
Snyder called it “a generous interpretation, but it also aligns with USDA’s definition.” He said he thought it would “satisfy many of the things that farmers are asking for” and added that EPA and the Corps “worked really closely with USDA on this particular portion of the rule, because we wanted to make sure we got it right.”
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In comments on the proposal, which did not contain the “change in use” language used by USDA but sought comment on how to regulate prior converted cropland, the American Farm Bureau Federation and about 20 other farm groups said “under no circumstance should the agencies return to implementing the PCC exclusion in a manner consistent with the USDA’s ‘change in use’ principle.”
The rule cited some comments as saying that building houses should not constitute a “change in use,” because the houses “could potentially be removed and the area returned to commodity crop production.
“The agencies disagree. A ‘change in use’ includes areas that have undergone soil disturbance such that substantial effort, such as the removal of concrete or other permanent structures, would be required to enable the production of agricultural commodities.”
In making the change, the agencies rejected the 2020 rule’s use of the “abandonment” approach, under which “generally speaking … an area would only regain jurisdictional status if the area has not been used for agricultural purposes at least once in every five years and the area reverts to a wetland that meets the definition of ‘waters of the United States.’”
But that approach “incentivizes disturbance of the area by a farmer once every five years to retain the exclusion; … creates a substantial loophole in Clean Water Act Section 404 protections by allowing any form of development of otherwise jurisdictional wetlands without authorization, so long as it occurs within five years of use of the area for agricultural purposes; … and undermines governmental coordination and efficiency because it is not consistent with USDA’s approach to prior converted cropland.”
“A number of commenters urged the agencies to maintain the 2020 NWPR’s approach to implementing prior converted cropland, emphasizing that on a national scale, developing wetlands, such as for purposes of mining or other industrial uses, could provide billions of dollars to farmers,” the rule says.
However, “the exclusion was originally intended to allow farmers to farm their land,” the rule says. “The financial benefit the commenters cite comes from selling farmland to be developed. Further facilitating these sales does nothing to support farmers who seek to continue to farm and could even undermine their incentives to do so.”
The agencies codified in the rule “exclusions for several features that they generally considered non-jurisdictional under the pre-2015 regulatory regime and the 2019 Repeal Rule and expressly excluded by regulation in the 2015 Clean Water Rule and 2020 NWPR.”
Those features include ditches, including roadside ditches, “excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water (and) artificially irrigated areas that would revert to dry land if the irrigation ceased.”
But they also say they are using the term “dry land” instead of “upland” when explaining how to determine whether those longstanding exclusions from Clean Water Act permitting requirements apply.
“It is important to note that jurisdictional and non-jurisdictional waters are not considered ‘dry land’ just because they lack water at a given time. Similarly, an area may remain ‘dry land’ even if it is wet after a precipitation event,” the rule says.
The 2020 rule, for example, excluded “water-filled depressions constructed or excavated in upland or in non-jurisdictional waters.” But the new rule says that approach deviated from longstanding practice.
“The distinction between ‘upland’ or ‘dry land’ and ‘nonjurisdictional features’ is important because ‘non-jurisdictional features’ can include features like certain ephemeral streams and wetlands that are not jurisdictional but are not ‘dry,’” the rule says. “This change in the 2020 NWPR resulted in an expansion of the exclusion as compared to the pre-2015 regulatory regime.”
Snyder said the rule continues to recognize longstanding permitting exemptions for farming activities such as plowing and seeding, and construction and maintenance of irrigation ditches and farm or stock ponds. It also would, he said, provide needed regulatory stability.
“Both the 2015 and the 2020 rules were struck down by federal courts,” he said. “So if you're a farmer, rancher or a landowner, in many ways, we have lacked certainty, and consistency and predictability with respect to how WOTUS is defined because of the various regulatory schemes and then court decisions.”
Snyder also said that in speaking with farmer groups over the last year, “I think there's sometimes a lack of understanding of the fact that it's EPA and the Army's fundamental responsibility under the Clean Water Act to define waters of the United States.”
Read a summary of the regional roundtables held by EPA and the Army Corps of Engineers here.
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