The EPA and the Army, the federal agencies involved in the Clean Water Act, handed down new definitive language for “water of the United States” (WOTUS) in the form of an administrative rule on the final business day of 2022.

By doing so, EPA and the Army jumped ahead of the U.S. Supreme Court, which has the WOTUS issue on its current docket in a case known as Sackett v. EPA.

The National Association of State Departments of Agriculture (NASDA) responded to the new rule by saying it is a waste of time, suggesting that the Environmental Protection Agency (EPA) and the Army should have just waited for the Supreme Court to rule in Sackett.

The Dec.30 announcement by EPA and the Army said:”This rule establishes a durable definition of “waters of the United States” that is grounded in the authority provided by Congress in the Clean Water Act, the best available science, and extensive implementation experience stewarding the nation’s waters.”

The definition has been contested during the entire 50-year history of the Clean Water Act.

“The EPA’s latest rule on defining “waters of the United States” is a statement of federal overreach that ignores states’ authority to regulate intrastate water quality and the Clean Water Act’s statutory mandate for cooperative federalism,” NASDA’s Ted McKinney said.

“In turn, although we recognize EPA’s attempt at clarifying through a roster of exemptions, its rule ignores the voices of nearly all in American agriculture who have long been seeking clarity on this issue, especially regarding the debate over what is and is not a navigable water. Farmers are committed to being responsible stewards of the land and water that they use to grow food, and the effectiveness of WOTUS should be taken with the same seriousness,” McKinney added. 
According to NASDA, the Clean Water Act establishes limits on federal jurisdiction and the role of the federal government to regulate interstate commerce, and has a role of states in regulating non-navigable waters. The bipartisan group of state directors says “the release of this ruling ahead of the U.S. Supreme Court ruling on Sackett v. EPA wastes tremendous federal, state and private sector resources as the decision of SCOTUS will invariably shift water regulations across the United States yet again significantly. “

The EPA and the Army claim the new rule is” in a position to respond and adjust to the Supreme Court ruling.” The federal agencies said “The rule returns to a reasonable and familiar framework founded on the pre-2015 definition with updates to reflect existing Supreme Court decisions, the latest science, and the agencies’ technical expertise. It establishes limits that appropriately draw the boundary of waters subject to federal protection.”

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