The U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army have announced a final rule establishing a durable definition of “waters of the United States” (WOTUS). EPA says that the definition will help reduce uncertainty from changing regulatory definitions, support 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.
National Association of State Departments of Agriculture released a press release titled “New Waters of the U.S. rule creates regulatory uncertainty for farmers”. NASDA characterized the ruling as a “statement of federal overreach that ignores states’ authority to regulate intrastate water quality and the Clean Water Act’s statutory mandate for cooperative federalism”. As NASDA previously stated in multiple sets of comments and input throughout this regulatory process, the Clean Water Act establishes limits on federal jurisdiction and the role of the federal government to regulate interstate commerce, thus recognizing the role of states in regulating non-navigable waters.
Following the announcement, Chairman-elect of the House Committee on Agriculture, Rep. Glenn “GT” Thompson, issued the statement: “The final WOTUS rule issued today by the Biden Administration is another step in the wrong direction… Simply recognizing long-standing agriculture exemptions that have been too narrowly applied for decades does not make up for, once again, plunging our rural communities into ambiguity… Finally, the timing of the rule is questionable given the fact that the Supreme Court is due to rule on a case related to WOTUS regulations in the coming months.”
