Debates about exactly what constitute “waters of the United States” (WOTUS) for regulatory purposes will probably never end, and maybe they shouldn’t.
But the matter, if not ultimately resolved, has gone into dormancy for the time being with the August 29 issuance by the Environmental Protection Agency of new criteria for defining WOTUS.
These criteria attempt to follow the Supreme Court in the case Sackett v. EPA, which in a May ruling threw out the “significant nexus” standard for bodies of water regulated by the federal Clean Water Act (CWA).
Under the previous regulations, a “significant nexus” would exist if a wetland “significantly affected the chemical, physical, and biological integrity” with a recognized WOTUS. That criterion has been eliminated.
Of course, it’s a lot more complicated than that. (See my previous article for some background.)
Bobby Magill, writing in Bloomberg Law, observes: “The new rule implements the court’s opinion that the Clean Water Act protects only waters and wetlands that are relatively permanent and have a continuous surface connection to navigable waterways, such as the Potomac or Mississippi rivers. . . .
“Sackett v. EPA effectively eliminated the federal government’s role in regulating many wetlands nationwide, leaving wetlands that aren’t directly connected to large rivers, streams, and coastlines either unregulated or regulated only by states.”
Unusually, the EPA issued the rule without a draft for public comment,
using the “‘good cause’ exception to notice-and-comment under the Administrative Procedure Act, which allows federal agencies to forgo public comment when officials think that a rule update is sufficiently urgent,” Magill observes.
Consequently, these regulations will go into effect as soon as they are published in the Federal Register.
Agricultural interests for the most part had opposed extending the WOTUS regulations to wetlands, but not all of them are happy with this victory. Zippy Duvall, president of the American Farm Bureau Federation, grumbles, “EPA had a golden opportunity to write a Waters of the U.S. rule that’s fair to farmers and stands the test of time, but instead chose to continue government overreach and revise only a small slice of the rule that was rejected by the Supreme Court.
“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.”