EPA and Corps Issue
New “WOTUS” Definition Rule

On December 30, 2022, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) (“the agencies”) announced a final rule establishing their version of a more “durable” definition of “waters of the United States” (WOTUS) in an attempt to reduce regulatory uncertainty regarding the agencies’ jurisdiction over waterbodies protected under the Clean Water Act (CWA).

The final rule outlines the agencies’ intentions to apply both the “relatively permanent” or “significant nexus” tests derived from the Supreme Court’s 4-1-4 decision in Rapanos to be used in determining the agencies’ jurisdiction over waterbodies and codifies eight exclusions from the definition of WOTUS.

The final rule will likely face legal challenges and a pending Supreme Court opinion in Sackett v. EPA is expected to impact the jurisdictional reach of the CWA on the country’s waters and wetlands.

Agriculture and water groups (including the Family Farm Alliance) in an amicus (“friend of the court”) brief  have asked the justices to reinterpret the CWA and exclude most wetlands and streams from the definition of WOTUS.

The Justice Department (DOJ) in a December 30 letter pointed to the Biden administration’s newly finalized rule to bolster arguments made by the administration to the Supreme Court in October. While the letter makes the case for a favorable ruling in the pending Sackett case, it also essentially makes the case for the justices to preserve and endorse the agencies’ approach in the final WOTUS rule and not adopt a new “bright line” test for determining a WOTUS.

“It is troubling to see the Biden Administration double-down on the significant nexus test after October’s oral argument in the Sackett case, during which the high Court seems inclined to do away with it,” said Alliance Executive Director Dan Keppen. “Significant nexus is a legally fragile test, created and signed onto by a single Justice in one Supreme Court case, 15 years ago. Yet, the new Biden WOTUS rule has been built on this precarious test. If, as expected, the Supreme Court strikes down the significant nexus test, the Biden WOTUS rule will certainly topple to the ground with it.”

For more information on the details of the final rule and the likely impacts, please see this brief prepared by The Ferguson Group (TFG), the Family Farm Alliance’s representative in Washington, D.C. This brief also includes helpful links to the following documents:

• WOTUS Final Rule Press Release

• Pre-Publication Final Rule

• Public Fact Sheet 2022

• Agricultural Community Fact Sheet 2022

• Landowners Guide Fact Sheet 2022

• EPA WOTUS Website