Biden administration defines upstream reach of clean water laws

Stepping ahead of a pending Supreme Court ruling, the Biden administration spelled out through a new regulation the upstream reach of water pollution laws, saying it would assure safe drinking water for Americans “while supporting agriculture, local economies, and downstream communities.” Farm and home-builder groups, who helped stall an Obama-era definition of the “waters of the United States” (WOTUS), said the Biden WOTUS rule also was a regulatory nightmare built on murky interpretations of the law.

The new WOTUS rule would cover more waterways and wetlands than the narrower definition written by the Trump administration, which was overturned by a federal district court in 2021. The EPA said the new regulation, which would take effect in 60 days, covered the ground intended by Congress in the 1972 Clean Water Act — “territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters.”

“Following extensive stakeholder engagement, and building on what we’ve learned from previous rules, EPA is working to deliver a durable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing greater certainty for farmers, ranchers, and landowners,” said EPA administrator Michael Regan in a joint announcement with the U.S. Army Corps of Engineers on Friday.

In a memorandum with USDA, the EPA, and the Corps of Engineers said cropland converted from wetlands would remain exempt from WOTUS regulation; the exemption was first codified in 1993.

Environmental groups such as the Natural Resources Defense Council applauded the new WOTUS definition as “a step in the right direction,” saying it would protect millions of miles of streams and tens of millions of acres of wetlands more than Trump’s Navigable Waters Protection Rule. “The EPA’s new rules will help protect the streams, wetlands, rivers, and lakes people and wildlife depend upon from pollution and other threats,” said the National Wildlife Federation.

The Pacific Legal Foundation, which argued in the Supreme Court last fall for strict limits on the clean water law, said the administration should have waited for the court to rule. “The definition of the waters of the United States shift with each new presidential administration, providing property owners with no long-term clarity,” said the foundation, an avowed foe of government overreach. It says the clean water law should apply only to waterways and adjacent wetlands with a surface connection to the waterways.

In 2006, the Supreme Court ruled that wetlands with a “significant nexus” to navigable waters were covered by the water pollution law. Courts have generally followed that rule since. Executive branch efforts to put it into regulation have been challenged repeatedly in court.

“EPA has doubled down on the old significant nexus test, creating more complicated regulations that will impose a quagmire of regulatory uncertainty on large areas of private farmland miles from the nearest navigable water,” said the American Farm Bureau Federation in criticizing the Biden initiative. The National Association of Home Builders said the new WOTUS definition “will dramatically expand” the land subject to federal wetlands rules. “This definition of WOTUS adds uncertainty and confusion to the regulatory process, raises housing costs, and drastically increases federal overreach in the process,” said the NAHB.

Rep. Glenn Thompson, the incoming chairman of the House Agriculture Committee, said the Biden WOTUS definition was “an egregious government land grab. Simply recognizing long-standing agriculture exemptions that have been too narrowly applied for decades does not make up for, once again, plunging our rural communities into ambiguity.”

The 1972 clean water law was directed toward the waters of the United States but Congress did not define them, leaving it to the EPA and the Corps of Engineers to define them through regulation.

When the Trump administration wrote its WOTUS definition, it said enforcement of the clean water law would be limited to oceans, rivers, core tributaries, and adjacent wetlands. Environmentalists said the move would leave half of U.S. wetlands and millions of miles of streams without protection from pollution.

The EPA website for WOTUS is available here.