The Waters of the United States Rule

Background

The federal Clean Water Act (CWA) is the primary statute protecting the nation’s surface waters. Historically, it was limited to navigable waters, tributaries, and adjacent water bodies that are hydrologically connected to or otherwise affect navigable waters. The administration of the law is split between the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers.

In the 50 years since the CWA’s passage, several U.S. Supreme Court decisions have sought to clarify the scope of regulatory jurisdiction for federal agencies under the act. However, determining which waterbodies are subject to federal regulations has been problematic for two decades, with EPA and the Corps of Engineers issuing guidance and regulations that have done little to clarify the limits of their regulatory authority. 

In 2015, Congress rejected efforts by environmentalists to remove the word navigable from the CWA. The two agencies promulgated the Waters of the United States (WOTUS) rule, which expanded their jurisdiction over U.S. waters to include navigable waters, upstream waters, and intermittent and ephemeral streams – such as the kind farmers use for drainage and irrigation. It also expanded into lands, including farm fields, adjacent to such waters, applying to any discernible feature that possessed (or previously possessed) a bed, bank, or high-water mark. 

NPPC and a broad coalition of other agricultural organizations and business groups opposed the WOTUS rule, filing suits in federal courts and ultimately stopping much of the regulation’s impact.

In 2020, during the Trump administration, EPA and the Corps of Engineers repealed and replaced the WOTUS rule with the Navigable Waters Protection Rule (NWPR), which more narrowly defined “navigable waters” and was more workable for farmers and the rest of the regulated community.

In December 2021, the Biden administration rescinded the NWPR and is in the process of an extensive rulemaking effort to develop a new WOTUS rule. The new proposed rule takes an overly broad view of which waters are jurisdictional and would require costly CWA permits for many activities on or near covered waters, potentially including such basic farming practices as planting seed or applying nutrients to adjacent farm fields to WOTUS. As the regulatory effort is underway, the Supreme Court is also set to hear a case in the fall of 2022 that will potentially clarify the scope of WOTUS and require additional new rulemaking by EPA and the Corps of Engineers.