WOTUS Update, “EPA Revises Clean-Water Protections”

Washington Post writer Scott Dance reported in Saturday’s paper that, “The Biden administration on Friday imposed a rule expanding the definition of waterways that the U.S. Environmental Protection Agency has authority to regulate, a move that reverses a Trump-era change and seeks to overcome nearly a decade of challenges to EPA powers, including a pending Supreme Court case.

“The EPA said its rule strikes a balance it hoped would protect waterways as well as commerce, returning its Waters of the United States regulatory framework to something resembling its state before it became a focus of political debate in 2015. That year, the Obama administration significantly and controversially widened the scope of the Clean Water Act to cover even ephemeral streams and ponds; Trump dramatically weakened EPA’s water pollution authority with a 2019 rule of his own.”

The Post article explained that, “Environmentalists say the rule is central to efforts to restore the health of impaired waterways and fragile wildlife habitats because it gives federal and state governments powers to limit the flow of pollutants, including livestock waste, construction runoff and industrial effluent. The regulation determines how broadly the government can enforce the Clean Water Act, the landmark 1972 law credited with gradual, though sometimes inconsistent, improvement to the health of polluted and degraded rivers and lakes.

“But the rule has been a flash point because advocates for industry and property rights say it is overly costly and impractical when applied to wetlands that can be difficult to define or streams that run only for part of the year.”

Lisa Friedman reported in Saturday’s New York Times that, “With the Supreme Court expected to rule next year in a major case that could reduce the government’s authority to regulate wetlands, experts called the Biden administration’s move strategic. Getting a rule on the books now gives the E.P.A. a greater chance of locking in, at least for a while, a broad definition of which waterways qualify for federal protection under the Clean Water Act.

“‘If the Supreme Court goes first, then the agency can’t finalize a rule that goes beyond it,’ said Kevin S. Minoli, a partner at Alston & Bird who served as an E.P.A. counsel in the Clinton, Bush, Obama and Trump administrations. By issuing a rule first, he said, the government has ‘more room to interpret’ the court decision when it comes.

“Under the new rule, the E.P.A. revived a definition of what constitute ‘waters of the United States’ that had been in place since 1986, describing the definition as ‘familiar’ and foundational to decades of clean-water progress. In a statement, the agency said the changes imposed by the Obama administration, a subsequent reversal by the Trump administration and several legal battles in between, had ‘harmed communities and our nation’s waters.'”

Associated Press writers Jim Salter and Michael Phillis reported in Saturday’s Los Angeles Times that, “The Environmental Protection Agency and the Department of the Army said the reworked rule is based on definitions that were in place prior to 2015. Federal officials said they wrote a ‘durable definition’ of waterways to reduce uncertainty.

“In recent years, however, there has been a lot of uncertainty. After the Obama administration sought to expand federal protections, the Trump administration rolled them back as part of its unwinding of hundreds of environmental and public health regulations. A federal judge rejected that effort. And a separate case is currently being considered by the Supreme Court that could yet upend the finalized rule.”

In a “Q and A” transcript regarding the latest rule with DTN writer Todd Neeley, EPA Agriculture Advisor Rod Snyder explained that, “So, in general, we’re using the pre-2015 framework. So not the Obama or Trump rules, kind of reverting back. But one of those changes is that we’re actually going to be putting the prior-converted cropland exclusion into the regulatory text. We think this helps provide clarity and certainty for farmers and then some other exclusions will be added to the regulatory checks as well, including certain ditches and irrigated areas, just to make it clear that we’re not attempting to regulate those kinds of features.”

In a separate DTN article Friday, Todd Neeley reported that, “Though the EPA is selling the latest waters of the U.S. rule as bringing needed clarity and certainty to farmers and ranchers, agriculture interest groups and others said the Biden administration’s iteration of the rule will complicate life on the farm.

“The EPA announced a final WOTUS rule that restores the use of the so-called ‘significant-nexus’ test when making Clean Water Act determinations, one of the centerpieces of the 2015 Obama-era rule that drew a flurry of lawsuits.

“Significant nexus is establishing a scientific connection between smaller water bodies, such as tributaries, and larger, more traditional navigable waters such as rivers. This then makes the smaller water bodies jurisdictional and subject to the Clean Water Act.”

Neeley added that, “Leading up to the finalized 2015 rule, ag and other interests raised concerns significant nexus could allow federal agencies to claim jurisdiction of dry land features.

“American Farm Bureau Federation President Zippy Duvall said that while farms and ranches will benefit from ag exemptions written into the law, there is no clear way for producers to determine what waters on their property are jurisdictional.”

Some Background on WOTUS Definition Change

Recall that in February of 2017, the Los Angeles Times reported that, “President Trump stepped up his attack on federal environmental protections [on February 28, 2017] issuing an order directing his administration to begin the long process of rolling back sweeping clean water rules that were enacted by his predecessor.”

And in June of 2017, The New York Times reported that, “The Trump administration on [June 27, 2017] took a major legal step toward repealing a bitterly contested Obama-era regulation designed to limit pollution in about 60 percent of the nation’s bodies of water.”  At that time, EPA released “a proposal to recodify the law as it was written prior to 2015.”

In January 2018, EPA postponed the applicability date of the WOTUS rule by two years.

In December of 2018, the Trump administration proposed a new ‘Waters of the United States’ definition.

Then in September of 2019, The New York Times reported that, “The Trump administration on [September 12] announced the repeal of a major Obama-era clean water regulation that had placed limits on polluting chemicals that could be used near streams, wetlands and other bodies of water.”

In January of 2020, EPA finalize a revised definition for “waters of the United States.”

June 2021– “Biden Administration Seeks to Rewrite Trump Clean Water Rule.”

In August 2021, a federal judge threw out the Trump-era rule and put back in place a 1986 standard that was broader in scope than the Trump rule but narrower than Obama’s.

The Supreme Court of the United States heard a dispute over the Environmental Protection Agency’s authority to police some kinds of water pollution in October 2022. New York Times writer Adam Liptak reported at the time that:

“The new case concerned [EPA’s] authority under a different law, the Clean Water Act, which allows the regulation of discharges into what the law calls ‘waters of the United States.’

“The question for the justices was how to determine which wetlands qualify as such waters.

“Much of the argument concerned the meaning of the word ‘adjacent,’ which was used in the law to describe covered wetlands.”