A final rule amending the definition of “Waters of the U.S.” to conform with the U.S. Supreme Court’s recent ruling doesn’t go far enough to limit regulatory overreach, according to groups representing agriculture.

The case, Sackett v. EPA, centered on federal jurisdiction of wetlands under the Clean Water Act as determined by EPA’s “significant nexus” test. That test does not require wetlands to have a continuous surface connection to navigable waters to be considered regulated waters.

In May, the Supreme Court unanimously disagreed, ruling the significant nexus test was a violation of the Clean Water Act and the constitutional right to due process.

While the 2023 rule defining WOTUS was not directly before the Supreme Court, the decision in Sackett made it clear that certain aspects of the rule are invalid, EPA and the U.S. Army Corps of Engineers stated in announcing the amended rule.

New changes

The amended rule removes the significant nexus test from consideration when identifying tributaries, adjacent wetlands and interstate wetlands as federally protected.

It also clarifies that protected wetlands must have a continuous surface connection to navigable waters.

While the amended rule eliminates the controversial significant nexus test, several agriculture groups contend it still misses the mark. In press statements, they also criticize the agencies for their lack of stakeholder involvement and missing an opportunity to address “real concerns.”

The EPA had a “golden opportunity” to write a WOTUS 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 Zippy Duvall, American Farm Bureau.

“We’re pleased the vague and confusing ‘significant nexus test’ has been eliminated as the Supreme Court dictated. But EPA ignored other clear concerns raised by the justices, 26 states and farmers across the country to respect private property rights and the Clean Water Act,” he said.

The revised rule doesn’t adequately comply with Supreme Court precedent and with limits on regulatory jurisdiction in the Clean Water Act, said Courtney Briggs, chairperson of the Water Advocacy Coalition and senior director of government affairs with Farm Bureau.

“Even worse, the agencies blocked public input and engagement in the revision process,” she said.

Frustration

State agriculture departments across the country are frustrated EPA and the Corps have disregarded the U.S. Supreme Court, local regulators and public stakeholders’ expertise and concerns, said Ted McKinney, CEO of the National Association of State Departments of Agriculture.

“It is baffling that the revised rule does not accurately address all the issues and questions raised by the Supreme Court in the Sackett decision, nor does it address many of the questions stakeholder groups raised about the WOTUS rule EPA released at the end of last year,” he said.

The National Council of Farmer Cooperatives is disappointed EPA and the Army Corps did not fully adhere to the ruling issued by the Supreme Court.

“This action is a missed opportunity to follow the court’s guidance and resolve a longstanding issue in a commonsense way. By picking and choosing what to address in this new definition, the agencies continue to further inject uncertainty for farmers and ranchers across the country,” the council said in a statement.

The revised WOTUS definition is “an important step toward bringing the EPA more in line with the Supreme Court’s ruling,” said Mary Thomas-Hart, the National Cattlemen’s Beef Association chief counsel.

NCBA will continue analyzing this latest development to ensure cattle producers are protected, she said

Missed opportunity

The Agricultural Retailers Association is extremely disappointed in the missed opportunity by the EPA and Army Corps of Engineers to follow the law and direction of the U.S. Supreme Court to clearly define the jurisdiction of the Clean Water Act, said Daren Coppock, the association’s president and CEO.

“The agencies failed to fully address all of the issues raised by the Supreme Court without adequately engaging impacted stakeholders and state agencies serving as co-regulators,” he said.

“Repeating mistakes will only lead to the continuation of flawed, unworkable regulations that will be litigated in the federal courts,” he said.

U.S. corn growers are disappointed by EPA’s revised WOTUS rule, said Tom Haag, National Corn Growers Association president.

“The agency failed to open the process to public comment and engagement, which would have been extremely valuable. Instead, the agency has released a rule that does not fully respect the holdings from the recent U.S. Supreme Court case on WOTUS,” he said.

National Association of Wheat Growers is uneasy with the outcome and concerned with about the repercussions, said Chandler Goule, the association’s CEO.

“NAWG is disappointed both agencies are proceeding with these regulatory adjustments without without public consultation on the proposed changes prior to finalizing the regulation,” he said.

The American Soybean Association was afraid this rule would be less than hoped for, said Daryl Cates, the association’s president.

“These revisions are unfortunately window dressings and leave in place much of the rule’s confusing and harmful foundations. It is even more unsettling that EPA and the Corps plan to finalize this rule without public comment. This revision is a missed opportunity to address very real and impactful farmer concerns,” he said.