Farmers and ranchers could soon face fewer regulatory hurdles when working near waterways, as EPA and the Army Corps of Engineers released a new proposal on Nov. 17 to redefine “Waters of the United States” (WOTUS). The agencies say the proposed rule is designed to bring long-requested clarity to what features fall under federal jurisdiction potentially reducing permitting uncertainty for agriculture, landowners and rural businesses.
The proposed rule will soon be published in the Federal Register, according to EPA. Once posted, the public will have the opportunity to comment through the Federal Register or via Regulations.gov.
The definition of WOTUS determines when producers must secure permits for projects that could affect surface water quality, including common activities such as building terraces, installing drainage or expanding livestock operations. EPA officials say the new proposal aims to align fully with the Supreme Court’s Sackett decision and prevent farmers from needing lawyers or consultants simply to determine whether a water feature on their land is federally regulated.
The proposal follows EPA Administrator Lee Zeldin’s promise in March to launch the biggest deregulatory action in history and a series of listening sessions in April and May that asked states, tribes, industry and agriculture to weigh in on WOTUS needs.
Clearer Definition After Years of Confusion
Zeldin and Assistant Secretary of the Army for Civil Works Adam Telle emphasize the rule is designed to be clear, durable and commonsense.
Key elements include:
- Defined terms such as relatively permanent, continuous surface connection, and tributary to outline which waters qualify under the Clean Water Act.
- A requirement that jurisdictional tributaries must have predictable, consistent flow to traditional navigable waters.
- Wetlands protections are limited to wetlands that physically touch and are indistinguishable from regulated waters for a consistent duration each year.
- Reaffirmed exclusions important to agriculture, including prior converted cropland, certain ditches and waste treatment systems.
- A new exclusion for groundwater.
- Locally-familiar terminology, such as “wet season,” to help determine whether water features meet regulatory thresholds.
EPA says these changes are intended to reduce uncertainty that has stemmed from years of shifting definitions across administrations.
Impact of WOTUS Proposal on Agriculture
For producers, the proposal could simplify compliance by narrowing which water features fall under federal oversight and confirming exclusions that many farm groups have long advocated.
Zeldin says the aim is “protecting the nation’s navigable waters from pollution” while preventing unnecessary burdens on farmers and ranchers. He criticizes past Democratic administrations for broad interpretations that, in his view, extended federal reach to features that did not warrant regulation.
Farm groups have argued for years that unclear or overly broad definitions can lead to significant costs, delays and legal risks when planning conservation work, drainage projects or infrastructure improvements. A more consistent rule could reduce project backlogs and limit case-by-case determinations that often slow progress during planting, construction or livestock expansion.
“We’ve seen WOTUS definitions, guidance and legal arguments change with each administration,” said Garrett Hawkins, president of the Missouri Farm Bureau, during the May 1 EPA listening session for agriculture. He adds: “farmers, land owners and small businesses are the ones who suffer the most when we don’t have clear rules.”
Several of those who gave testimony and public comment during the ag listening session argued that farmers and ranchers, who already struggle with unpredictable markets and tight margins, shouldn’t have to hire experts to identify elements of their own land.
“A practical WOTUS definition will allow the average landowner — not an engineer, not an attorney, not a wetland specialist — to walk out on their property, see a water feature and make, at minimum, a preliminary determination about whether a feature is federally jurisdictional,” says Kim Brackett, vice president of the National Cattlemen’s Beef Association, who also gave testimony in May.
Alignment With the Sackett Decision
After the Supreme Court’s 2023 Sackett v. EPA ruling, which restricted federal authority over many wetlands, the agencies say the previous WOTUS definition no longer aligned with the law. EPA already issued a memo earlier this year clarifying limits on jurisdiction over adjacent wetlands. The newly proposed rule is the next step in that process.
The proposed rule focuses on relatively permanent bodies of water — streams, rivers, lakes and oceans — and wetlands that are physically connected to those waters. Seasonal and regional variations are incorporated, including waters that flow consistently during the wetter months.
The current situation is a regulatory patchwork. Due to litigation that followed the January 2023 WOTUS rule, which was considered in the Sackett decision, different states are following different rules. Currently, 24 states, mostly the coastal and Great Lakes states, are operating on the 2023 rule, while the other 26 states, mostly those in center and in the Southeast, are operating on pre-2015 WOTUS rule.
Oversight Rests With State and Tribes
A major theme of the proposal is cooperative federalism, giving more authority to states and tribes to manage local land and water resources. EPA says the rule preserves necessary federal protections while recognizing states and tribal governments are best positioned to oversee many smaller or isolated water features.
Sections 101b and 510 of the CWA are key structural examples of the concept of cooperative federalism. The sections give states and tribes the right to set standards and issue permits for federal activities that could discharge pollutants into a water of the U.S. within the state or territory. The most common example of this are 404 dredge and fill permits.
This focus on cooperative federalism was the main chorus of the EPA’s listening session for states, held April 29, especially as it concerns wetlands.
“If more wetlands are excluded from WOTUS, then certain federal projects would not require a section 401 water quality certification by the states,” noted Jennifer Congdon, director of federal affairs for New York Department of Environmental Conservation, during the states’ listening session. She argues that such a situation could impair water quality within a state, thus violating states’ rights under the CWA.
What Happens Next
The proposed rule will soon be published in the Federal Register, kicking off a 45-day public comment period. EPA and the Army Corps of Engineers will hold two hybrid public meetings, and details for submitting comments or registering to speak will be available on EPA’s website.
After the comment period, the agencies plan to move quickly toward a final rule.
“Once the rule is finalized, it typically takes effect 60 days after publication in the Federal Register pursuant to Congressional Review Act requirements,” the EPA press office told The Packer earlier this summer.
Based on these potential timelines, a new — potentially final — WOTUS rule could take effect as early as late February.