The latest definition of “waters of the U.S.” gives the EPA and Army Corps of Engineers new discretion that will create uncertainty for some landowners, and the legal battles over the jurisdiction of the Clean Water Act are far from over.
Like the Obama rule and another one issued in 2020 under then-President Donald Trump to define the jurisdiction of the Clean Water Act, the Biden administration’s rule is almost certain to face legal challenges, and an upcoming Supreme Court ruling could lead to modifications as well.
“It is especially unfortunate that this action has been taken while the Supreme Court continues deliberations on a WOTUS case heard this fall, since a decision in that case may once again require changes to the rule,” said Chuck Conner, president and CEO of the National Council of Farmer Cooperatives.
The latest rule, issued Dec. 30, maintains exemptions for agricultural practices while scaling back an exclusion for prior converted cropland that was in the 2020 rule. The new rule also eliminates an automatic exclusion for ephemeral streams, which flow only when it rains enough.
Under the 2020 Trump rule, acreage classified as a prior converted cropland was exempt from CWA as long as it wasn’t abandoned and returned to a wetland. The new rule would remove the exclusion for land that is shifted out of agriculture, although it appears the acreage could remain exempt if it has lost its wetlands hydrology.
A lobbyist who is a specialist in water regulation said providing a permanent exclusion for land that no longer has the hydrology of a wetland would make the new rule better than Obama’s. But the lobbyist noted that while the issue was mentioned in a joint memo issued by the EPA and Army Corps of Engineers, it was not addressed in the preamble of the rule.
The lobbyist, who didn’t want to be identified because his comments could be associated with his clients, said EPA Administrator Michael Regan needs to state clearly how the exemption will be enforced.
EPA Administrator Michael Regan“It will be hard for aggies to trust this, given the silence on this in the rule itself, given past Corps practices, the new joint memo notwithstanding,” the lobbyist said.
Another ag industry lobbyist said the new rule was better than the Obama rule in that it doesn’t attempt to define areas of CWA jurisdiction by their physical distance from a stream or river. Those provisions in the 2015 rule, meant that much of the land in some farm states fell under federal jurisdiction.
But the new rule's treatment of ephemeral streams creates uncertainty for landowners since it will be up to the agencies to decide on a case-by-case basis which features fall under federal jurisdiction. The agencies will be guided by whether the streams have “relatively permanent” flows or a “significant nexus” to navigable waters.
According to the Biden administration’s economic analysis of the new rule, ephemeral streams and wetlands would “be much more affected” by the new WOTUS rule than they were by the 2020 version, known as the Navigable Waters Protection rule.
“No ephemeral streams were jurisdictional under the 2020 NWPR, whereas those that satisfy the significant nexus standard would be jurisdictional under the final rule,” the analysis says.
The analysis says the administration doesn’t know how much prior converted cropland would be exempt under the rule, in part because not all prior converted cropland has been mapped by USDA. In 1993, it was estimated that there were 53 million acres of prior converted cropland nationally, the analysis said.
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Former EPA attorney Mark Ryan, a member of the Environmental Protection Network, an organization of former EPA staff and political appointees who analyze agency actions, described the new rule as “middle road.”
“It covers less than the Obama administration proposed in 2015 but more than the last administration's very restrictive rule,” he said.” This rule is drafted with an eye toward the inevitable court challenges that will be filed, and it includes several politically smart exemptions for the agriculture community that were not in the draft rule.”
But Mary-Thomas Hart, chief counsel for the National Cattlemen’s Beef Association, said the Biden rule “is a far cry from the regulatory certainty” offered by Trump's 2020 rule.
“The timing of this rule could not be worse,” she said in a statement when the new rule was rolled out. “The Supreme Court is currently considering Sackett v. EPA, which will provide much-needed clarity related to the WOTUS definition. Today’s final rule seeks to directly preempt ongoing Supreme Court litigation, leaving farmers and ranchers with more questions than answers.”
Zippy Duvall, president of the American Farm Bureau Federation, welcomed the “agencies’ attempt to provide needed clarifications of the prior converted cropland exclusion and exemptions for irrigation ditches and stock ponds.” But he said the “overall rule is still unworkable for America’s farm families.”
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