EPA announces new WOTUS rule, but some think Supreme Court case should have come first – Agweek

WASHINGTON — The US Environmental Protection Agency and US Army Corps of Engineers on Friday, Dec. 30, released a final rule establishing a durable definition of “waters of the United States” — often referred to as WOTUS.

The agencies say the new rule will reduce uncertainty from changing regulatory definitions and strengthen protections for drinking water while supporting agriculture, local economies and downstream communities. However, North Dakota’s members of Congress say the Biden administration should have held off until the Supreme Court weighs in on water policy.

Agriculture and other industries have been concerned about regulatory problems from the rules over the years because of uncertainty regarding what qualifies as a wetland. Farmers, for instance, have had issues with whether they can install drain tile in fields with seasonal wetlands.

US Sen. Kevin Cramer, RN.D., on Friday said the administration should have waited for the decision in the Sackett v. EPA case addressing WOTUS before issuing a final rule.

“The regulatory ping pong of WOTUS regulations will seemingly never end. Establishing a new WOTUS definition before the Supreme Court has ruled on Sackett v. EPA only adds to the regulatory confusion,” he said in a statement.

The rule will be final 60 days after publication in the Federal Register. The agencies plan a Jan. 19 webinar on the final rule.

The term “waters of the US” appears in the federal Clean Water Act of 1972 that empowers the Environmental Protection Agency and the Army Corps of Engineers with protecting those waters. But the act does not clearly define what is covered by WOTUS, though it does mention both “navigable” and “interstate” waters.

WOTUS has undergone some jockeying in recent decades, depending on who held the presidency. In 2015, under President Barack Obama, the WOTUS definition was expanded under the Clean Water Rule, giving the federal government more authority. But short challenges, including one led by the North Dakota attorney general, kept the Obama rule from being enforced nationwide. The rule changed again under President Donald Trump, when what is called the Navigable Waters Protection Rule was put in place. But a court ruling in Arizona kept that rule from being used.

The EPA and Corps of Engineers under President Joe Biden began working on a new rule, a proposal of which was posted to the Federal Register on Dec. 7, 2021. The agencies say the rule announced on Dec. 30 as final “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.”

“When Congress passed the Clean Water Act 50 years ago, it recognized that protecting our waters is essential to ensuring healthy communities and a thriving economy,” EPA Administrator Michael S. Regan said in a statement. “Following extensive stakeholder engagement, and building on what we’ve learned from previous rules, EPA is working to deliver a sustainable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing greater certainty for farmers, ranchers , and landowners.”

“This final rule recognizes the essential role of the nation’s water resources in communities across the nation,” said Assistant Secretary of the Army for Civil Works Michael L. Connor. “The rule’s clear and supportable definition of waters of the United States will allow for more efficient and effective implementation and provide the clarity long desired by farmers, industry, environmental organizations, and other stakeholders.”

While the rulemaking process has been going on, the US Supreme Court has considered a case taking on US water policy. The court heard Sackett vs. EPA on Oct. 4, 2022, and has yet to issue a decision. On the surface, the case is about whether landowners have a right to go to court to challenge a Clean Water Act order of the Environmental Protection Agency. However, it has delved deeper into the mechanisms of WOTUS and how to determine if wetlands are “waters of the United States” under the Clean Water Act.

Cramer in his statement said he told Regan and Assistant EPA Administrator Radhika Fox “the empowerment of EPA and Army Corps bureaucrats by giving them federal authority over non-navigable ponds, ditches, and potholes is a recipe for disaster.” The two visited in June 2021. Because much of North Dakota is in the Prairie Pothole region, with many seasonal wetlands, North Dakota’s politicians have been active in the WOTUS debate.

“Our state is and will be the epicenter of this debate and we have been a leader in the fight against federal overreach of our waters. We need an enduring, legally defensible rule to provide regulatory certainty. I look forward to the Supreme Court’s ruling on the matter,” Cramer said.

North Dakota’s other members of Congress agreed.

“The return of WOTUS would be a disaster for North Dakota’s farmers and ranchers,” said Rep. Kelly Armstrong, R.N.D. “I am disappointed that the Biden administration is determined to bring it back despite warnings from ag producers that it will harm their livelihoods. We have to keep fighting against harmful policies that don’t do anything to keep our air and water clean.”

“The Biden administration continues to push overbroad regulations that impose increased costs and greater constraints on our economy, which ultimately lead to higher prices for American consumers,” said Sen. John Hoeven, RN.D. “Like the Obama-era rule, this new WOTUS definition violates private property rights and is the wrong approach for our nation. Instead, we need regulatory relief that encourages investment and reduces costs for energy development, agriculture producers and construction, among others, while empowering states to protect the water resources within their borders.”

The National Association of Wheat Growers also expressed their concern about the rule coming before the Sackett decision but said they will be studying the new rule before its implementation.

“The National Association of Wheat Growers is deeply concerned that the EPA and US Army Corps rushed to get this revised definition out prior to the end of the year instead of waiting for the decision in the Sackett case before the Supreme Court,” said NAWG CEO Chandler Ghoul. “While we continue reviewing the final rule, since the rulemaking process was announced last year, NAWG has stressed that farmers need clarity regarding jurisdiction, recognize important agricultural water features, and more long-term certainty from the courts and administrations.”

The EPA and Corps of Engineers say the new rule is grounded in the authority in the Clean Water Act, along with “the best available science, and extensive implementation experience stewarding the nation’s waters,” and that it establishes limits on the boundary of waters subject to federal protection to traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters.

The agencies also say they are working to improve federal coordination in implementation of the rule, including working with the US Department of Agriculture to provide clarity on programs under the Clean Water Act and Food Security Act.

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