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The Clean Water Act provides the U.S. Environmental Protection Agency with federal jurisdiction over “navigable waters.” The act defines “navigable waters” as the “Waters of the United States,” which the EPA and Army Corps of Engineers may further define by regulation.
The scope of federal jurisdiction under the act has long been a challenge for farms, ranches and other agribusinesses. The scope of jurisdiction affects whether permits are required for wastewater discharges, the dredge and fill of wetlands, and other actions potentially affecting water quality.
As agriculturalists understand, water flow conditions are often dynamic and rarely fit neatly within written definitions. After rulemakings changed the definition of Waters of the United States, or WOTUS, in 2015, 2019 and 2020, the EPA again announced a revised definition last year, which will take effect March 20.
From the 1980s through 2015, the interpretation of WOTUS remained largely unchanged aside from a handful of decisions issued by the U.S. Supreme Court. Then, in 2015, the agencies revised the definition of WOTUS, significantly expanding the scope of federal jurisdiction through the “significant nexus” analysis.
The 2015 rule was widely criticized by agriculturalists not only for the expansion of jurisdiction but also for lack of clarity. In the agencies’ defense, the “significant nexus” analysis originated with the Supreme Court’s plurality decision in Rapanos v. United States in 2006, but the effect of the 2015 rule was the addition of yet another term that was hard to interpret and apply to conditions in the field.
The 2015 rule was repealed in 2019; this change reinstated the 1980s regulations. The 2019 rule was then replaced by the 2020 Navigable Waters Protection Rule.
Now, the most recent WOTUS definition is based upon the familiar pre-2015 standard. While a change in administration or a Supreme Court decision could reintroduce confusion or complication, the 2023 rule is largely a reprieve from the jurisdictional uncertainty of the last eight years.
The 2023 rule codifies two long-standing exclusions from the definition of WOTUS: prior converted cropland and certain waste treatment systems, such as treatment ponds or lagoons. It also codifies six more exclusions that might be relevant to agriculture. Each of these exclusions comes with its own definition and criteria, but the 2023 rule does attempt to mitigate the confusion created over the last several years of evolving definitions.
To that end, the new rule contains numerous examples applying the newly codified definitions. The following text comes from the EPA’s Agricultural Community Fact Sheet, outlining the six new WOTUS exclusions relevant to agriculture:
◗ Artificially irrigated areas that would revert to dry land if the irrigation ceased.
◗ Artificial lakes or ponds created by excavating or diking dry land that are used exclusively for such purposes as stock watering, irrigation, settling basins or rice growing.
◗ Artificial reflecting pools or swimming pools and other small ornamental bodies of water created by excavating or diking dry land.
◗ Water-filled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand or gravel unless and until the construction operation is abandoned and the resulting body of water meets the definition of WOTUS.
◗ Swales and erosional features, such as gullies and small washes, that are characterized by low volume, infrequent or short duration flow.
Disagreements regarding the scope of federal jurisdiction under the Clean Water Act will continue. Even if litigation about the post-2015 definitions wanes, a host of permitting decisions issued under the dynamic WOTUS definitions of the last eight years might be challenged, particularly where jurisdiction is not supported under the pre-2015 standard.
But Indiana agriculture should be heartened. The 2023 rule brings much-needed clarity to the question of federal jurisdiction and largely returns the regulated community to the status quo: the pre-2015 definition of WOTUS.•
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Waite is a government and regulatory associate at Faegre Drinker in Indianapolis.
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