EPA, Army Corps release final WOTUS rule

The Environmental Protection Agency and the U.S. Army Corps of Engineers on Dec. 30 released the Biden administration’s definition of the Waters of the United States.
EPA and the Army Corps said they had announced “a durable definition of ‘waters of the United States’ (WOTUS) to reduce uncertainty from changing regulatory definitions, protect people’s health, and support economic opportunity.”
“The final rule 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. As a result, this action will strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies and downstream communities.”
“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,” said EPA Administrator Michael Regan.
“Following extensive stakeholder engagement, and building on what we’ve learned from previous rules, EPA is working to deliver a durable 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 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.”
The agencies said, “This rule establishes a durable definition of ‘waters of the United States’ that is grounded in the authority provided by Congress in the Clean Water Act, the best available science, and extensive implementation experience stewarding the nation’s waters.”
“The rule returns to a reasonable and familiar framework founded on the pre-2015 definition with updates to reflect existing Supreme Court decisions, the latest science, and the agencies’ technical expertise. It establishes limits that appropriately draw the boundary of waters subject to federal protection.”
Details may be found on the WOTUS section of the EPA website at
The agencies also released a memo with the Agriculture Department they said would provide “clarity on the agencies’ programs under the Clean Water Act and Food Security Act.”
Sen. Kevin Cramer, R-N.D., a member of the Senate Environment and Public Works Committee, and Sen. John Hoeven, R-N.D., the ranking member on the Senate Agriculture Appropriations Subcommittee, criticized the rule.
Cramer said, “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.”
“When Administrator Regan and Assistant Administrator Fox visited North Dakota, I reiterated 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.
“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.
Hoeven said, “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.”
“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 Cattlemen’s Beef Association also found fault with the rule.
“For too long, farmers and ranchers have dealt with the whiplash of shifting WOTUS definitions,” said NCBA Chief Counsel Mary-Thomas Hart.
“Today, the Biden administration sought to finalize a WOTUS definition that will protect both our nation’s water supply and cattle producers across the nation. While the rule retains longstanding, bipartisan WOTUS exclusions for certain agricultural features, it creates new uncertainty for farmers, ranchers, and landowners across the nation.”
“The timing of this rule could not be worse,” added Hart. “The Supreme Court is currently considering Sackett v. EPA, which will provide much-needed clarity related to the WOTUS definition. Today’s final rule seeks to directly preempt ongoing Supreme Court litigation, leaving farmers and ranchers with more questions than answers.”
NCBA noted it had previously called for EPA to retain agricultural exclusions for small, isolated, and temporary water features that commonly appear on farms and ranches.
“These exclusions have broad support and were included in WOTUS rules under both Republican and Democratic administrations,” NCBA said.
“The rule fails to clearly exempt isolated and ephemeral features from federal jurisdiction and relies on ‘case-by-case’ determinations to assess whether a feature is federally regulated. Today’s rule is a far cry from the regulatory certainty provided by the Navigable Waters Protection Rule, creating a significant and costly burden for agricultural producers,” NCBA said.
John Rumpler, Environment America Research & Policy Center Senior Clean Water campaigns director, said, “The EPA’s new rule makes progress by restoring federal protections to at least some waterways.”
“It officially cleans up the Trump administration’s Dirty Water Rule, which wiped out federal protections for thousands of waterways and nearly half of all wetlands across the country. The Trump rule provoked widespread public opposition and was criticized by the EPA’s own science advisers.
“But securing the promise of the Clean Water Act requires us to protect all our streams and remaining wetlands from polluters. Small streams help provide drinking water to millions of Americans. Wetlands filter out pollutants, provide vital wildlife habitat and protect our communities from flooding in a climate-changed world.
“Regrettably, the EPA could not deliver fully on this promise today, as an extreme challenge to the Clean Water Act at the Supreme Court hangs like a sword of Damocles over the agency’s head. We will not rest until we counter that looming threat and all of America’s waterways get the protection they deserve.”
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