WASHINGTON, D.C. – For the fourth time in the past decade, the Environmental Protection Agency (EPA) will write a new rule for regulating waters of the United States, one that EPA Administrator Lee Zeldin said will closely align with a Supreme Court decision and alleviate regulatory risks for farmers.
A wetlands pond off a highway in North Dakota. EPA is again prompting a rewrite of the Waters Of The U.S. (WOTUS) rule to align more closely with the 2023 ruling in the Sackett case.
Zeldin on Wednesday announced the latest attempt to write a new WOTUS rule “and make sure we are fixing WOTUS once and for all.” Zeldin said the new rule will more closely align with the Supreme Court ruling on Sackett v EPA that significantly narrowed the definition of WOTUS.
The Sackett decision limited EPA and the U.S. Army Corps of Engineers to regulating only wetlands and waterways with a continuous surface connection to a larger body of water.
EPA and the Corps on Wednesday announced a joint memorandum to field staff about implementation of a “continuous surface connection” in accordance with Sackett.
Zeldin also noted EPA has gone back and forth in writing new WOTUS language since the Obama administration rule was released in 2015.
“We are not looking for this to be a ping pong anymore,” Zeldin said. “What we’re looking for is to simply follow the guidance from Sackett. It gave us a clear path in determining what waters are for Waters of the United States.”
Still, EPA’s notice in the Federal Register will outline a new public hearing and rulemaking process to define the meaning of key terms tied to the Sackett case to clarify how WOTUS will be interpreted going forward. That includes spelling out what the scope of “relatively permanent” means when it comes to tributaries, for instance. The agencies will also seek to detail the scope of “continuous surface connection” and the scope of “jurisdictional ditches.”
EPA plans to hold at least six listening sessions through the web or in person over the next two months, though dates have not been set.
Political, environmental, agricultural and business groups have been fighting over how to define waters of the U.S. for two decades. Some parts of the country fell under the 2023 Biden rule while other parts of the country were regulated by the pre-2015 rules for WOTUS, which adds to some of the confusion about EPA and Corps of Engineers oversight.
The first Trump administration rule, the Navigable Waters Protection Rule, drew praise from agricultural groups but it wasn’t finalized until June 2020, replacing the 2015 Obama-era rule. Still, the Trump rule was vacated by a federal court in Arizona in 2021 after litigation brought by a tribe.
Senators and House members who opposed the Obama and Biden efforts spoke at Zeldin’s press event rolling out the new rulemaking process.
“This is something I hear about all of the time,” said Sen. John Boozman, R-Ark., chairman of the Senate Agriculture Committee. He added, “Many times whenever things are difficult in Washington, the easiest thing is to not make a decision.”
Sen. Kevin Cramer, R-N.D., noted the terrain of North Dakota has made it susceptible to attempts to regulate what farmers do on their land.
“We’re a prairie pothole region where our farmers and our landowners, over the decades and over a century, have always managed the water with the same respect as they manage their land because it’s in their best interest,” he said.
Cramer praised the clarity brought by the Sackett decision, but added, “There are a lot of people, including the previous administration, who just ignored that clarity and sort of chose to make it sound murky.”
Sen. Joni Ernst, R-Iowa, noted she had gotten legislation passed that would have overturned the Obama rule though he vetoed it. Ernst said farmers have gone through “regulatory whiplash” over the rules. Ernst said the Biden administration “was doubling down on those efforts. For far too long we have seen this grip of the federal government really impacting daily Iowans’ lives, American lives.”
She continued, “They are threatening our livelihoods and I am really grateful that President (Donald) Trump is righting this wrong and brining more common sense back to the regulatory environment, especially surrounding waters of the United States,” Ernst said.
Sen Katie Britt, R-Ala., said the rule change shows President Trump is keeping his promises. Britt said there is no bigger issue in the state of Alabama than WOTUS when she travels the state.
“This was the very top of a long list of things that I wanted to see the EPA change course on, and that’s because it affects the daily lives of so many Alabamians,” she said.
Rep. Doug LaMalfa, R-Calif., said constituents in his district have had their ability to use their land curtailed. He pointed to a farmer who was pressed by regulators after planting wheat on fallowed land.
“Normal things that used to be normal were turned on their heads in the Obama and Biden administration,” LaMalfa said.
Derrick Van Orden, R-Wis., said his district has a long continuous stretch of the upper Mississippi River running along it. Conservation efforts such as retention ponds have kept nutrients out of the river. If the WOTUS rules had stayed in place, they would have had to get rid of these retention ponds, he said.
“I wanted to come here specifically to thank President Donald J. Trump and Administrator Zeldin for standing up for our farmers and reversing the last four years of the war on agriculture that has been waged by the Biden administration,” Van Orden said.
Zippy Duvall, president of the American Farm Bureau Federation, credited the Trump administration for bringing clarity to WOTUS. Duvall said WOTUS is among the biggest issues facing producers on the regulatory front.
“WOTUS has been a pain in the side to our farmers and ranchers.” Duvall said the Biden administration rule was vague about issues such as defining “relatively permanent.” He said farmers need a one-page rule that will help define for them how WOTUS might affect their farms.
“Our farmers and ranchers for generations have worked hard to leave their farms and ranches in better shape than what they found it,” he said. “None of us would do anything to harm the environment, or the water or the air that we live on.”
The last ruling in August 2023 removed the term “significant nexus” from the waters of the U.S. and clarified that wetlands are not defined as adjacent or jurisdictional in the Clean Water Act solely because they are “bordering, contiguous or neighboring” or separated from other waters by man-made barriers.
