WOTUS definition lacks ... definition
Posted on Apr 18, 2023 at 20:00 PM
By Jay Stone, Georgia Farm Bureau
At the end of her 20-minute presentation before the Georgia Farm Bureau Commodity Advisory Committee for Water, Courtney Briggs customarily asked what questions committee members had about the 2023 Waters of the United States Rule, finalized in March by the EPA and the U.S. Army Corps of Engineers.
The first response: “You said ‘unfortunately’ a lot.”
Briggs, a senior director for government affairs with the American Farm Bureau Federation, reviewed the challenges presented by the rule, which was developed under the Biden administration and poses many of the same challenges as a pre-2015 rule pushed through under President Barack Obama and then repealed and replaced under President Donald Trump.
Each iteration attempts to define, for the purposes of Clean Water Act (CWA) compliance, what constitutes “waters of the United States.”
As Briggs talked, three main themes emerged.
First, the rule, its exemptions for farmers and the CWA itself, is built on ambiguous language.
“Ambiguity and vagueness. If there were two words that I would use to describe this whole entire rule, it’s those two,” Briggs said.
Second, the regulatory history of defining WOTUS has become a political pendulum, swinging one way under Democrats and swinging the other way under Republicans. Farm Bureau maintained that the Navigable Waters Protection Rule (NWPR) advanced under President Trump provided much-needed clarity.
“That rule really created a ‘bright line’ jurisdiction,” Briggs said, referring to the point where federal jurisdiction ends and state jurisdiction begins. “I probably don’t need to remind you of this, but the reason we need a bright line jurisdiction is because there are criminal and civil penalties attached to CWA compliance. So, you can be fined hefty amounts of money for every day of noncompliance, or you can go to jail. When the penalties are that steep, it’s really imperative that the regulated community knows exactly where that bright line jurisdiction is.”
Third, the 2023 WOTUS rule depends heavily on the “significant nexus” test created by Justice Anthony Kennedy in the Supreme Court case Rapanos v. the United States. The significant nexus test requires a water feature to have a significant impact on the quality or integrity of downstream water in order to be deemed a WOTUS.
“The problem with the use of the significant nexus is it allows the agencies to aggregate waters together in order to expand their regulatory reach to encapsulate entire watersheds as jurisdictional,” Briggs said. “It uses very ambiguously and vaguely defined terms, such as ‘in the region’ or ‘substantially similar’ or ‘significantly affect’ to establish jurisdiction.”
Briggs said the exemptions afforded farmers in the rule leave much to be desired from the agricultural point of view.
“The problem is that you have those exemptions in the Clean Water Act, but right behind them, you have a retraction provision, that essentially says, and I’m paraphrasing here, ‘You’re exempt, unless we tell you you’re not.’ So, no farmer, no landowner has complete confidence in their ability to use the exemption.”
While the 2023 WOTUS rule was finalized and went into effect on March 20, two U.S. district courts have ruled to halt its implementation in 26 states, including Georgia. Another Supreme Court case, Sackett vs. EPA, centers on whether the significant nexus test can be used to define waters of the United States. The court heard arguments in the Sackett case in October. At press time the Supreme Court had not issued its ruling.
Briggs was asked about approaches farmers could take to figure out how the rule will apply on their land, and she noted that in some states Farm Bureaus have reached out to local Corps of Engineers districts and had discussions about how the rule would be implemented in their district.