The EPA and Army Corps of Engineers’ Tuesday revisions to their existing “waters of the U.S.” rule, which narrowed the scope of the rule based on the Supreme Court’s Sackett decision, were greeted with resignation and protest.
Both environmental and agricultural groups expressed disappointment in the revisions — the former because the areas protected under the Clean Water Act have been drastically reduced, the latter because, they say, the agencies should have gone much further.
“The EPA will now rely on a radically narrower definition of protected waters, severely limiting the scope and effectiveness of the Clean Water Act, one of the most successful, effective, and widely supported pieces of legislation ever codified in the United States,” Earthjustice said. “In addition to removing protections for well over half of the wetlands in our country, a substantial number of tributaries, streams, and even lakes may very well lose Clean Water Act protections.”
Jim Murphy, director of legal advocacy for the National Wildlife Federation, said the revisions implemented because of the May Sackett v. EPA decision did not come as a surprise.
"It’s obviously a terrible result,” he said. “It rolls back protections pretty significantly.”
But he said that was expected, using the same word — “surgical” — to describe changes that EPA Ag Adviser Rod Snyder had used in describing EPA's plans in June.
In eliminating the “significant nexus” test to determine whether a water or wetland has enough of a connection to navigable waters to be deemed jurisdictional, the agencies were simply doing what the Supreme Court told them to do, Murphy said.
Now, in line with Sackett, waters must be “relatively permanent, standing or continuously flowing bodies of water,” according to the new rulemaking.
The new rule does the same for “adjacent wetlands,” tossing the definition that used “bordering, contiguous, or neighboring,” which allowed "wetlands separated from other 'waters of the United States' by man-made dikes or barriers, natural river berms, beach dunes and the like” to be defined as “adjacent.”
In its place is language that says “adjacent means having a continuous surface water connection.”
Farm groups, lawmakers generally critical of EPA and the Clean Water Act, and many state agencies universally blasted the rule, calling it a “missed opportunity.”
The National Association of State Departments of Agriculture said it had asked repeatedly to meet with EPA and the Corps, “yet the agencies made the decision to exclude active participation not only from regulated stakeholders but also from states who share in the regulatory responsibility.”
“It is baffling that the revised rule does not accurately address all the issues and questions raised by the Supreme Court in the Sackett decision, nor does it address many of the questions stakeholder groups raised about the WOTUS rule EPA released at the end of last year,” NASDA CEO Ted McKinney said.
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The Waters Advocacy Coalition, a broad-based collection of industry groups including the American Farm Bureau Federation, had sought more detail in the rule, including “clear standards for determining how much flow constitutes relatively permanent, rather than [forcing] property owners to have to once again feel their way on a case-by-case basis,” as WAC said in a letter to the agencies in July.
The coalition also wanted the definition of WOTUS to exclude most ditches.
Ted McKinney, NASDAThe National Corn Growers Association and American Soybean Association both criticized the revisions, with ASA President Daryl Cates calling them “window dressings [that] leave in place much of the rule’s confusing and harmful foundations.” NCGA President Tom Haag said the rule “does not fully respect the holdings” of Sackett.
House Ag Committee Chair Glenn “GT” Thompson, R-Pa., echoed the complaints of farm groups, saying “EPA’s bureaucratic sleight-of-hand circumventing the rulemaking process leaves the door open to agency abuse and regulatory and legal uncertainty for American agriculture.
EPA said it had “good cause” not to take public comment on the revisions since the changes simply incorporate what the Supreme Court said.
Murphy said he thinks the pressure will build on Congress to revise the CWA on its own once the full impact of the Sackett decision - and the federal government's corresponding WOTUS rewrite - is better understood
“I am hopeful Congress will fix this,” Murphy said. “I realize that’s not going to happen in the next month or two.”
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