EPA and the Army Corps of Engineers this week issued revisions to the January 2023 final Waters of the United States definition rule under the Clean Water Act. The rule, which was issued as final without public comment, would make the January 2023 WOTUS definition consistent with the U.S. Supreme Court’s May 2023 ruling in Sackett v. EPA.
EPA and the Corps opted to use an Administrative Procedure Act exception that can allow regulations to go straight to final without soliciting public comment if there is “good cause” for the agencies to do so. The regulators contend public comments were unnecessary because they are merely making conforming edits to the Sackett decision. The WOTUS revisions will go into effect as soon as they are published in the federal register the next several days.
NCGA and ASA released media statements this week in response to EPA’s announcement, expressing concerns with issues left unaddressed in the revisions and the lack of a public comment option before finalizing the rule.
“U.S. corn growers are disappointed by EPA’s revised WOTUS rule,” said NCGA President Tom Haag. “The agency failed to open the process to public comment and engagement, which would have been extremely valuable. Instead, the agency has released a rule that does not fully respect the holdings from the recent U.S. Supreme Court case on WOTUS. ”
ASA says: “When EPA and the Army Corps announced they planned to tweak the flawed WOTUS regulations on the heels of the Sackett decision, we were concerned this could be the outcome," said ASA President Daryl Cates, a soybean farmer in Illinois. "These revisions are unfortunately window dressings and leave in place much of the rule’s confusing and harmful foundations. It is even more unsettling that EPA and the Corps plan to finalize this rule without public comment. This revision is a missed opportunity to address very real and impactful farmer concerns.”
What’s in the revised WOTUS? The revised rule makes specific, targeted revisions to the WOTUS definition, including:
Removing all references to significant nexus, which was unanimously rejected by the Supreme Court under Sackett.
Striking from the definition references to interstate wetlands.
Revising definitions of “adjacent” waters to mean “having a continuous surface connection,” as opposed to the previous definition of “bordering, contiguous, or neighboring.”
What’s NOT in the revised WOTUS? While the revisions concentrate on some of the matters raised in the Sackett ruling, ASA says the agencies leave many issues that continue to make WOTUS challenging and unworkable for farmers unaddressed. For example, the agencies do not provide clarity on what “relatively permanent” waters are or address how the regulators would approach seasonal or ephemeral waters. This leaves great uncertainty as to whether a landowner can reasonably determine whether their property is subject to regulation, a significant concern raised by the court in Sackett.
Remember: Due to ongoing litigation, the underlying January 2023 rule is currently subject to injunction and prohibited from taking effect in South Carolina and 26 other states, including: Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.
What’s next? The South Carolina Corn and Soybean Association, in coordination with ASA and NCGA, will continue to engage with other ag and industry stakeholders to determine appropriate next steps on addressing the revisions and the underlying January 2023 WOTUS rule.