EPA’s New WOTUS Rules: What Producers Need to Know About

The Environmental Protection Agency (EPA) announced new Waters of the U.S. (WOTUS) rules on Tuesday, following a May Supreme Court ruling in Sackett v. EPA, that required EPA to revise the WOTUS definition.

“We have worked with EPA to expeditiously develop a rule to incorporate changes required as a result of the Supreme Court’s decision,” said Michael L. Connor, Assistant Secretary of the Army for Civil Works. “With this final rule, the Corps can resume issuing approved jurisdictional determinations that were paused in light of the decision.”

Under the new rule, two primary changes were made, including:
•    Clarification that wetlands protected under the Clean Water Act must have a continuous surface connection to navigable waterways
•    Removal of the highly debated “significant nexus” test, which was used to determine whether there was a connection between small and large bodies of water

What do these policy changes mean? Private property is better protected from being taken by the government, according to Rep. Glenn Thompson (R-Pa.). But this isn't the first time WOTUS rules have been modified.

Is the new WOTUS definition good for ag?

WOTUS rules have evolved many times in the past 50 years, with each administration crafting their own version of the rules.

In December 2022, EPA revised WOTUS—ahead of the Supreme Court's ruling—to give federal protection to large waterways, like interstate rivers and streams and wetlands that are adjacent to them. Many ag groups did not support these changes and shared their concerns in discussions, and in court. Some, including Ted McKinney of the National Association of State Departments of Ag (NASDA), don't think EPA got the message.

“The ruling in Sackett v. EPA was a chance for EPA and the Army Corps to correct a deeply flawed, prematurely released rule and work to truly improve water quality outcomes. It is baffling that the revised rule does not accurately address all the issues and questions raised by the Supreme Court, nor does it address many of the questions stakeholder groups raised about the WOTUS rule EPA released at the end of last year," McKinney said.

Zippy Duvall, Farm Bureau president, mirrored McKinney, saying the new WOTUS definition is another round of whiplash on growers.

“We’re pleased the vague and confusing ‘significant nexus’ test has been eliminated as the Supreme Court dictated. But EPA has ignored other clear concerns raised by the Justices, 26 states, and farmers across the country about the rule’s failure to respect private property rights and the Clean Water Act,” Duvall said.

Related story: WOTUS Ruling Causing Confusion in Key Ag States

Mary-Thomas Hart, chief counsel at National Cattlemen’s Beef Association (NCBA), took a different stance on EPA’s announcement. While she applauded the EPA’s swift transition to a new rule, Hart says the association will monitor changes to ensure cattle producers are protected.

Moving forward, EPA says it plans to host events to communicate WOTUS changes. To kickstart the conversation, the agency scheduled a public webinar on Sept. 12, when it will outline the latest WOTUS revisions. Those interested in attending can register here.