The Environmental Protection Agency and Army Corps of Engineers on Friday announced a new definition of “waters of the United States,” a classification that has been debated for decades.
The new definition announced this week instates similar protections to those that were in place before 2015, while also clarifying certain qualifications for protected waters. At issue is which types of waterways — wetlands, rivers, lakes, etc. — are protected under the Clean Water Act (WOTUS), which was signed into law 50 years ago. The act regulates water pollutants and empowers the EPA and the Army Corps of Engineers to define which particular bodies of water are protected by law. Protected bodies of water qualify for federal programs pertaining to oil spill prevention, water quality regulation and more.
Texas Farm Bureau President Russell Boening following the issuance the final Waters of the United States Rule , said, “Texas Farm Bureau is extremely disappointed in the final Waters of the United States rule issued by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers.
“The rule does not provide the needed clarity and certainty that has been requested by Texas farmers and ranchers. In fact, the rule allows the federal government to expand its jurisdictional reach over private property. It is incredibly diffi cult for a farmer or rancher to understand if they have a jurisdictional feature on their property. The agencies have doubled down on their use of the troubling signifi cant nexus test. This will require landowners to hire environmental consultants, attorneys, and engineers to ensure that they are in compliance.
“We are hopeful the U.S. Supreme Court will soon provide some clarity on the use of the significant nexus test.”
In 2015, the EPA established a relatively broad definition of waters of the United States, or WOTUS, that included navigable waters such as the Mississippi River and the Pacific and Atlantic oceans, as well as rivers, lakes and wetlands that crossed state borders. In 2020, the Trump administration limited the types of waterways that received the federal protections, excluding much of the country’s wetlands and smaller waterways.
Like the 2015 rules, navigable waters, oceans, and interstate waterways are protected by default. Tributaries that flow into and affect larger bodies of water, as well as wetlands near protected waters and some additional lakes and ponds can also be protected. To qualify, such smaller waterways must meet a set of standards that focuses on their permanence and their interconnectedness with other bodies of water. These updated standards are, in part, a response to several Supreme Court decisions in cases that challenged past definitions of WOTUS over the last two decades.
The new rule also establishes some exclusions from WOTUS: wetlands that were converted to cropland before 1985, waste treatment centers, ditches, areas with human-made irrigation, artifi cial lakes and ponds, and artificial pools.
The Supreme Court is set to issue a decision next year in a case challenging the EPA’s determination that a wetland on private land in Idaho is protected under the Clean Water Act. That decision could impact future rules about WOTUS.