EPA announces final rule regarding WOTUS

A recent decision by the Environmental Protection Agency and the U.S. Army Corps of Engineers, Washington, D.C., establishes a “durable” definition of “waters of the United States,” or, WOTUS.

The definition has industry experts concerned about the definition’s implications for the irrigation industry. For some irrigators, a federal permit might now be necessary when working with water that falls under federal jurisdiction.

With the average cost of obtaining a federal permit costing more than $250,000, according to the National Federation of Independent Business, the impact WOTUS has on the industry is serious.

“Whenever we’re talking about the scope of federal water jurisdiction, it’s always an issue because our members work so closely with water, and oftentimes they’re working in areas that could potentially federal jurisdiction. We have to pay attention,” says Nathan Bowen, advocacy director at the Irrigation Association.

Much of the concern regarding the Biden administration’s definition of WOTUS stems from the “significant nexus” test, which would allow agencies to determine the jurisdiction of a covered water body, and could allow agency jurisdiction over some of the specifically exempted features provided for in the rule as a WOTUS.

The specifically exempted features include prior converted cropland, waste treatment systems, ditches (excavated exclusively in the uplands without permanent flow, including roadside ditches), artificially irrigated areas that would revert to dry ground if irrigation were to cease, artificial lakes or ponds, artificial reflecting pools or swimming pools, water-filled depressions, and swales and erosional features.

“It is troubling to see the Biden administration double-down on the significant nexus test after October’s oral argument in the Sackett case, during which the high court seems inclined to do away with it,” says Dan Keppen, executive director at the Family Farm Alliance.

“Significant nexus is a legally fragile test, created and signed onto by a single justice in one Supreme Court case, 15 years ago. Yet, the new Biden WOTUS rule has been built on this precarious test. If, as expected, the Supreme Court strikes down the significant nexus test, the Biden WOTUS rule will certainly topple to the ground with it.”

The Supreme Court decision Keppen refers to is Sackett v. EPA and the court is expected to publish an opinion in 2023.

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