EPA issues post-Sackett WOTUS rule, removes numerous waterways from Clean Water Act regulation

By Drew Viguet
National Agricultural Law Center
U of A System Division of Agriculture

Brigit Rollins, staff attorney for the National Agricultural Law Center, says that numerous bodies of water previously identified as WOTUS will no longer have that classification (Division of Agriculture file photo)

FAYETTEVILLE, Ark. — The highly anticipated new waters of the United States, or WOTUS, rule released Tuesday by the Environmental Protection Agency will remove scores of water bodies from regulation under the Clean Water Act.

Absent from the new rule is the “significant nexus”  test which had been part of WOTUS since the 2006 Supreme Court decision Rapanos vs. U.S. In that decision, Justice Anthony Kennedy wrote that wetlands should be included in the definition of WOTUS if they shared “significant nexus” with a water already identified as a WOTUS.

The EPA’s new WOTUS rule follows the May 25 U.S. Supreme Court decision in Sackett v. EPA. In that case, the high court narrowed the definition of WOTUS to include open, flowing bodies of water such as streams, rivers, lakes, and the ocean, along with those wetlands that share a continuous surface connection with such bodies of water.

Prior to the Sackett decision, WOTUS included adjacent wetlands, defining “adjacent” as “bordering, contiguous, or neighboring.” In its updated rule, EPA redefined '”adjacent” as “having a continuous surface connection,” bringing it in line with the Sackett decision.

“The effects of EPA’s WOTUS decision will definitely be felt by ag producers, especially when it comes to wetlands,” Brigit Rollins, staff attorney for the National Agricultural Law Center, said.

The new WOTUS rule reduces the number of waters and wetlands that would require a permit for point source pollution. 

“After the decision in Sackett, naturally the EPA was going to take another look at its definition of WOTUS,” Brigit Rollins said. With “significant nexus” gone, “now only wetlands that share an unbroken or continuous surface water connection with water already identified as WOTUS are included.”

This means that numerous bodies of water that previously would have been considered WOTUS will no longer have that classification.

“EPA is saying that wetlands which would share a surface water connection with a WOTUS but no longer have that connection due to manmade barriers such as levies, dikes or sand dunes will not be included in the WOTUS definition,” Rollins said.

Pre-Sackett WOTUS

After the Biden Administration’s March 2023 WOTUS rule went into effect, courts enjoined it in 28 states. There are three lawsuits outstanding regarding the 2023 rule: Texas v. EPA, West Virginia v. EPA, and Kentucky v. EPA. With EPA’s final decision now out, the lawsuits are paused, and their future uncertain.

“It’s hard to say what will happen with those,” Rollins said. “We probably won’t know the outcome for a couple more weeks. Those lawsuits may be dropped, or those involved may go on and litigate.”

Rollins, who focuses on environmental law in her research, has been providing timely updates on WOTUS through 2023, both online and via webinar.

On Nov. 15, Rollins will continue the discussion of WOTUS in her next NALC webinar, “What’s Up with WOTUS: Post-Sackett and Beyond.” The third installment in Rollins’ series will cover subsequent events following the Sackett decision and long-term effects of the ruling. Registration is online. Recording of the first and second installment in the series are also available online.

Why WOTUS matters

WOTUS is a critical component of the Clean Water Act. The CWA was established by Congress in 1972 with the goal of improving the country’s water quality. To achieve that goal, certain bodies of water are declared as WOTUS under the CWA, granting them protections.

“The WOTUS definition has been the subject of considerable debate over the years, but 2023 has been a considerably busy year for all things WOTUS,” Rollins said.

For information about the National Agricultural Law Center, visit nationalaglawcenter.org or follow @Nataglaw on Twitter. The National Agricultural Law Center is also on Facebook and LinkedIn.

For updates on agricultural law and policy developments, subscribe free of charge to The Feed, the NALC’s newsletter highlighting recent legal developments facing agriculture, which issues twice a month.

About the National Agricultural Law Center

The National Agricultural Law Center serves as the nation’s leading source of agricultural and food law research and information. The NALC works with producers, state and federal policymakers, Congressional staffers, attorneys, land grant universities, and many others to provide objective, nonpartisan agricultural and food law research and information to the nation’s agricultural community.

The NALC is a unit of the University of Arkansas System Division of Agriculture and works in close partnership with the USDA Agricultural Research Service, National Agricultural Library.

NALC’s Rollins to discuss WOTUS definition after SCOTUS ruling in July 19 webinar

By Tru Joi Curtis
National Agricultural Law Center
U of A System Division of Agriculture

FAYETTEVILLE, Ark. — How the Environmental Protection Agency will define the key Clean Water Act term “waters of the United States,” or WOTUS, is unclear following a ruling by the U.S. Supreme Court on a case involving wetlands, said National Agricultural Law Center Staff Attorney Brigit Rollins.

Brigit Rollins, staff attorney for the National Agricultural Law Center, will present a July 19 webinar on the current state of WOTUS and the recent Sackett ruling from the U.S. Supreme Court.

The U.S. Supreme Court’s ruling in Sackett vs. Environmental Protection Agency determined that only those wetlands that share a continuous surface connection with a water body recognized under the WOTUS definition can be regulated under the Clean Water act, or CWA. This has created some inconsistencies with the EPA’s 2023 definition of WOTUS which includes some wetlands that do not share a surface connection with another body of water.

The definition of WOTUS determines what water bodies can be protected by the CWA, which is the primary federal law regulating water pollution in the United States. The CWA requires anyone who might introduce pollutants into a body of water protected under the CWA to acquire a permit from EPA. Introducing pollutants into a WOTUS without a permit can result in fines and criminal prosecution under the CWA. Therefore, it is incredibly important to understand the scope of WOTUS.

“The EPA will most likely have to revisit its 2023 definition of WOTUS because that rule is out of step with the court’s ruling,” Rollins said. “In particular, the Sackett opinion limits what wetlands can be covered by the Clean Water Act beyond what the EPA included in its 2023 rule.”

Confusion over the WOTUS definition and the protection wetlands should receive is nothing new. Since the CWA was passed in 1972, the degree of protection for wetlands has been a point of contention for policymakers.

Rollins will be discussing the current state of WOTUS and the recent ruling from the U.S. Supreme Court during NALC’s upcoming webinar, “What’s Up with WOTUS: A Look at the Current WOTUS Definition and Recent Supreme Court Decision.” This webinar will be held Wednesday, July 19, at 11 a.m. Central/noon Eastern.

“I look forward to shedding some light on the court’s recent ruling, and what that may mean for the definition of WOTUS going forward,” Rollins said.

The webinar is free of charge and registration is online.

“We are thrilled to have Brigit discuss the court’s ruling and the WOTUS definition in this webinar,” NALC Director Harrison Pittman said. “Because the definition affects so many industries and how they conduct their work, it’s critical to understand the status of WOTUS.”

The July webinar is the second in a series regarding WOTUS. The information and recording for the first part, “What’s Up with WOTUS: An Overview of ‘Waters of the United States’ and Why it Matters to Agriculture,” can also be found online.

Rollins will present a third installment on Nov. 15, titled, “What’s Up with WOTUS: Post-Sackett and Beyond.” The November webinar will look at subsequent events and consider the long-term effects of the Sackett ruling. Registration and information for the third part of the series is available online.

For information about the National Agricultural Law Center, visit nationalaglawcenter.org or follow @Nataglaw on Twitter. The National Agricultural Law Center is also on Facebook and LinkedIn.

For updates on agricultural law and policy developments, subscribe free of charge to The Feed, the NALC’s newsletter highlighting recent legal developments facing agriculture, which issues twice a month.

Supreme Court WOTUS ruling narrows definition of wetlands, but what about levees?

By John Lovett
University of Arkansas System Division of Agriculture
Arkansas Agricultural Experiment Station

FAYETTEVILLE, Ark. — The U.S. Supreme Court’s ruling this week narrowed the definition of what is considered “waters of the United States” in the Clean Water Act. But there remains room for discussion on wetlands separated by levees for flood control and dry creek beds, said the National Agricultural Law Center’s Brigit Rollins.

WOTUS RULING —The U.S. Supreme Court's latest WOTUS ruling provides guidance for the EPA to revisit definitions of wetlands subject to the Clean Water Act, says National Agricultural Law Center attorney Brigit Rollins. (U of A System Division of Agriculture photo)

The high court’s opinion on a case out of Idaho, Sackett vs. Environmental Protection Agency, rejected the EPA’s argument that a wetland near Priest Lake on the Sackett's property should be considered “waters of the United States,” or WOTUS, because it did not share a continuous surface connection to the lake. Thus, the court found, the wetland should not be subject to the Clean Water Act, and the Sacketts are now cleared to build their home on the land after 16 years of litigation.

“The EPA is probably going to have to revisit its most recent definition of WOTUS, in no small part because what is in the EPA’s 2023 definition does not comport with what is in this opinion,” Rollins said.

The justices held that the Clean Water Act’s definition of “waters” should be limited to “geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’ and to adjacent wetlands that are ‘indistinguishable’ from those bodies of water due to a continuous surface connection.”

Rollins said the opinion gets to the heart of what wetlands can be covered by the Clean Water Act by stating it has to share some kind of continuous surface connection.

However, she said, discussion may remain for narrowing what is considered an “adjacent wetland” if it contains a manmade levee for flood control.

“If it is a wetland that would share a continuous surface water connection with, say, the Mississippi River, if not for a levee … are those now no longer jurisdictional? Questions like this will be left for agencies and lower courts to determine how the opinion is interpreted,” Rollins said.

A question also remains, Rollins said, how the ruling will impact land in Western states that contain dry creek beds, also known as “washes,” that drain into a body of water covered by the Clean Water Act.

Rollins, who specializes in environmental law as it intersects with agriculture, will present a webinar on the recent Supreme Court decision on July 19 as part two of a two-part webinar series from the National Agricultural Law Center. Register for the free webinar by visiting the National Agricultural Law Center website. To watch the recording of the first WOTUS webinar in the series visit the website https://nationalaglawcenter.org/webinars/wotus/.

To learn more about Division of Agriculture research, visit the Arkansas Agricultural Experiment Station website: https://aaes.uada.edu. Follow on Twitter at @ArkAgResearch. To learn more about the Division of Agriculture, visit https://uada.edu/. Follow us on Twitter at @AgInArk. To learn about extension programs in Arkansas, contact your local Cooperative Extension Service agent or visit www.uaex.uada.edu.

For information about the National Agricultural Law Center, visit nationalaglawcenter.org or follow @Nataglaw on Twitter. The National Agricultural Law Center is also on Facebook and LinkedIn.

About the National Agricultural Law Center

The National Agricultural Law Center serves as the nation’s leading source of agricultural and food law research and information. The NALC works with producers, state and federal policymakers, Congressional staffers, attorneys, land grant universities, and many others to provide objective, nonpartisan agricultural and food law research and information to the nation’s agricultural community.

The NALC is a unit of the University of Arkansas System Division of Agriculture and works in close partnership with the USDA Agricultural Research Service, National Agricultural Library.

Texas federal court grants WOTUS injunction for two states; two more requests pending

By Mary Hightower
U of A System Division of Agriculture

FAYETTEVILLE, Ark. — A federal court has halted implementation of the Environmental Protection Agency’s new rule defining waters of the United States, and two more injunction requests are pending in cases involving 25 states, including Arkansas, said Brigit Rollins, National Agricultural Law Center staff attorney.

The new rule went into effect on Monday. The U.S. District Court in the Southern District of Texas issued the injunction Sunday night in Texas vs. EPA. The case halts implementation of the new EPA rule in both Texas and Idaho.

An injunction granted by a federal court judge is only the beginning for three cases challenging EPA's new rule that defines waters of the U.S., or WOTUS, according to Brigit Rollins of the National Agricultural Law Center. (U of A System Division of Agriuclture image)

There are two other cases pending — Kentucky Chamber of Commerce vs. EPA, which involves only Kentucky, and State of West Virginia vs. EPA, which involves 24 states, including Arkansas. Following the Texas action, attorneys in the two other cases filed additional briefs Sunday noting the injunction.

The injunction is “not the end of the road. That’s just sort of the first step in the lawsuit,” Rollins said. “The arguments and the claims are still lingering” and need to be heard.

“Should the judges in those other two lawsuits issue injunctions, there are a couple of things that are going to happen right away: Once the judge issues the injunction, the current WOTUS rule will no longer be in legal effect,” Rollins said. “What that means is that EPA is going to be applying the previous WOTUS rule that was in place.”

At issue in all three cases is how EPA defines “waters of the U.S.,” known as WOTUS. That definition is critical to enforcement of the Clean Water Act.

Muddying the waters

The legal vortex surrounding WOTUS means the waters may get muddier before clarity is achieved. Rollins said the situation harkens back to EPA’s 2015 rule redefining WOTUS and the resulting lawsuits.

“What ultimately ended up happening was that more than 50 percent of the states had an injunction on that 2015 rule,” she said. “What it meant for those states is that they were applying a different WOTUS rule than in the states that had not joined the suits.

“It’s not impossible that we could see that again,” Rollins said.

“It creates confusion for landowners, members of agricultural communities, and members of industrial communities. I would imagine it would be particularly challenging for anyone who is operating in multiple states,” she said. “You might be subject to different requirements in different states.

“There is the potential for issues to arise with pending Clean Water Act permits that are sort of stuck between those different rules,” Rollins said. “And at the moment it's going to be hard to say what that means for those permits.”

The National Agricultural Law Center has a page dedicated to WOTUS updates.

For updates on WOTUS and other agricultural law developments, subscribe free of charge to The Feed, the NALC’s twice-monthly newsletter highlighting recent legal developments facing agriculture.

For information about the National Agricultural Law Center, visit nationalaglawcenter.org or follow @Nataglaw on Twitter. The National Agricultural Law Center is also on Facebook and LinkedIn.

About the National Agricultural Law Center

The National Agricultural Law Center serves as the nation’s leading source of agricultural and food law research and information. The NALC works with producers, state and federal policymakers, Congressional staffers, attorneys, land grant universities, and many others to provide objective, nonpartisan agricultural and food law research and information to the nation’s agricultural community.

The NALC is a unit of the University of Arkansas System Division of Agriculture and works in close partnership with the USDA Agricultural Research Service, National Agricultural Library.