The U.S. Environmental Protection Agency (EPA) and the Department of the Army have engaged with State and Tribal co-regulators; industry and agricultural stakeholders; environmental and conservation stakeholders; and the public on certain key topics related to the implementation of the definition of “waters of the United States” considering the Supreme Court’s 2023 decision in Sackett v. Environmental Protection Agency.
At the May industry/agriculture listening session and in written comments from FFBF, along with other Farm Bureau’s across the country, the agricultural community has asked for changes and clarity in the WOTUS definition, including:
Scope of “Relatively Permanent” Waters
Any regulation defining “relatively permanent” waters must emphasize the test of “ordinary parlance” as outlined in Sackett. This test should limit agency regulation to conventionally defined geographical features such as streams, oceans, rivers, and lakes.
The regulation should also establish minimum flow volume and duration requirements to ensure that only natural features containing continuously flowing or standing water for most of the year are regulated.
Artificial canals, ditches, or other such man-made features should not be subject to federal jurisdiction even if they meet the “relatively permanent” test unless they are used for navigation.
Scope of “Continuous Surface Connection”
The definition of “adjacent wetlands” must include Sackett’s “indistinguishability” requirement. Wetlands should only be regulated if they have a continuous surface connection to covered waters. Wetlands separated from covered waters by natural or artificial barriers should not be jurisdictional.
As such, any new rulemaking should explicitly state that only wetlands with a continuous aquatic surface connection to covered waters may be regulated under the Clean Water Act (CWA). Physical abutment alone is insufficient for CWA authority.
Defining “Waters of the United States”
EPA must establish clear parameters for which waters are and are not jurisdictional under the CWA. All non-jurisdictional waters should be left to the states to regulate.
More background information about this issue can be found here.
