By Marlee Jackson
(334) 613-4219

The Biden Administration wrote another disappointing chapter in the controversial Waters of the U.S. (WOTUS) saga yesterday as the Environmental Protection Agency (EPA) released minor revisions to the rule.

The revisions scrap the “significant nexus” standard to determine when waters or wetlands are covered by the Clean Water Act. The definition of “adjacent wetlands” was also revised.

The Alabama Farmers Federation’s Mitt Walker said the revisions, while technically in line with a May Supreme Court ruling, are discouraging. 

“It’s disappointing to see the EPA again hamper farmers’ rights to manage water on their land,” said Walker, who leads national affairs for Alabama’s largest general farm organization. “We have been fighting for clear, concise rules since the 2015 WOTUS rule was released. This is a small step in the right direction, but EPA must make more changes to roll back regulatory overreach.”

EPA and the Army Corps of Engineers made the revisions without public notice and comments in response to the Sackett v. EPA Supreme Court ruling. The rule will take effect upon publication in the Federal Register.

The Sackett case concerned two Idaho landowners, Michael and Chantell Sackett, who contended wetlands on their property were not “adjacent” under the Clean Water Act.

Now, in line with Sackett, waters must be “relatively permanent, standing or continuously flowing bodies of water.” Additionally, the revised rule says “adjacent means having a continuous surface water connection.”

American Farm Bureau Federation President Zippy Duvall and other national agriculture leaders said the revision was a missed opportunity.

“EPA had a golden opportunity to write a Waters of the U.S. Rule that’s fair to farmers and stands the test of time but instead chose to continue government overreach and revise only a small slice of the rule that was rejected by the Supreme Court,” said Duvall, a farmer from Georgia. “We’re pleased the vague and confusing ‘significant nexus’ test has been eliminated as the Supreme Court dictated. But EPA has ignored other clear concerns raised by the justices, 26 states and farmers across the country about the rule’s failure to respect private property rights and the Clean Water Act. Farmers and ranchers share the goal of protecting the resources they’re entrusted with. They deserve a rule that respects farmers as partners in that effort.”

The current WOTUS dispute has now spanned three presidential administrations, beginning with President Barack Obama.