EPA administrator Lee Zeldin announced this week he intends to redefine the definition of “Waters of the United States.” In a March 12 announcement, he says his agency wants clean water for all Americans supported by clear and consistent rules for all states, farmers and small businesses.
“The previous Administration’s definition of ‘Waters of the United States’ placed unfair burdens on the American people and drove up the cost of doing business,” Zeldin says. “Our goal is to protect America’s water resources consistent with the law of the land while empowering American farmers, landowners, entrepreneurs and families to help power the Great American Comeback.”
If you feel like you’ve heard this before, it’s because you probably have. The battle over EPA’s authority to regulate small bodies of water on farmland has raged for decades. Multiple presidents, court rulings and lawsuits have all attempted to clarify the issues only to have their interpretations challenged and overturned. Now the Trump administration will again take a stab at settling the issue.
That issue all ties back to a small provision in the 1971 Clean Water Act known as the Waters of the United States, or WOTUS, definition. It attempts to clarify how much authority EPA has to set standards for all navigable waterways within the country. Specifically, how far upstream from major rivers like the Mississippi and the Ohio can EPA regulate? Should farmers be required to obtain permits before proceeding with projects that may impact small bodies of water on their land?
In 2023, the Supreme Court ruled that the Biden administration’s WOTUS definition was too vague. That definition allowed EPA to regulate bodies of water that had a “significant nexus” to a navigable waterway. The court determined EPA’s authority only extended to bodies of water with a continuous surface connection to those waterways. In the Sackett v. EPA case, court justices also ruled that interstate wetlands aren’t automatically subject to Clean Water Act requirements.
In response to the ruling, the Biden administration released a revised WOTUS definition in 2023. Many ag groups contend the revised Biden rule was still too vague and did not fully comply with the high court ruling. Several lawsuits are also working their way through the courts attempting to further reduce the scope of the current rule.
American Farm Bureau Federation President Zippy Duvall commended Zeldin for attempting to provide clarity on how farmers should comply with the rule. In a March 12 press release, Duvall contends the federal government overreached in its interpretation of what water fell under federal authority. He says inaction and vague implementation guidelines have resulted in permitting delays, litigation and uncertainty.
"I'm pleased that EPA Administrator Lee Zeldin has listened to the concerns of farmers and is making strides toward getting rid of the guesswork,” Duvall says. “The foundation he laid today is the first step toward creating clear WOTUS implementation guidelines, which will help farmers protect the environment while ensuring they can grow the food America’s families rely on.”
Those sentiments were echoed by National Cattlemen’s Beef Association chief counsel Mary-Thomas Hart, who called the EPA decision an important step toward “refocusing the Clean Water Act to its original purpose.”
"For years, NCBA has worked across the federal government – educating members of Congress, participating in agency rulemakings, and fighting for cattle producers in federal court – to secure a WOTUS definition that protects both our nation’s natural resources and Americans’ property rights,” said in a March 12 statement. “We are proud of the Trump Administration’s effort to further conform the WOTUS definition to the Supreme Court's decision in Sackett v. EPA.”
Zeldin’s announcement marks the fourth time EPA will attempt to re-write the WOTUS definition in the past six years. In 2020, the Trump administration issued a rule significantly limiting the bodies of water subject to EPA control. The Supreme Court struck down that rule the following year, citing potential environmental harm and mistakes in how the rule was enacted.
In late 2022, President Joe Biden announced his version of WOTUS. The Biden rule faced a congressional challenge mere months later. Multiple states also sued, resulting in WOTUS being invalidated in more than half the country. Biden’s EPA later issued a revised rule in response to the Supreme Court’s Sackett case decision.
Ag groups complained they were not more involved in crafting the new Biden rule. Zeldin says he plans to seek input from stakeholders who he says were “sidelined” by the Biden administration. As EPA considers revisions, Zeldin says the agency will focus on clarity, simplicity and improvements that will “stand the test of time.” As the process proceeds, he says EPA will provide guidance to states implementing the pre-2015 definition of WOTUS to ensure consistency.