By Ching Lee
A new federal rule by the Trump administration is expected to reduce regulatory burdens on farmers by narrowing the scope of federal oversight on the nation’s wetlands and other waterways.
Released last month by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers, the proposed rule carries out directives from the 2023 U.S. Supreme Court ruling in Sackett v. EPA, ending years of regulatory uncertainty about how the Clean Water Act applies to working farmland.
The rule is designed to cut red tape and prevent federal overreach, EPA said, which could save farmers time and money by reducing permitting requirements for activities on their land. It provides a new definition of “waters of the United States,” or WOTUS, that aims to ensure that only relatively permanent, standing or continuously flowing bodies of water—such as streams, oceans, rivers and lakes—and wetlands that are connected to and indistinguishable from such water bodies are federally regulated, EPA added.
Public comments on the proposed rule are due Jan. 5.
Farm groups, which have long called for clearer rules on WOTUS to simplify compliance for landowners, largely expressed support for the new definition, saying it brings much-needed clarity and ends years of shifting regulations that often led to confusion about what waters were under federal control and require a Clean Water Act permit.
Courtney Briggs, senior director of government affairs for the American Farm Bureau Federation, called the proposed rule “a real positive step in the right direction,” as it provides a clear distinction between regulating major water bodies and farm-specific features such as ditches and ponds.
“The Supreme Court clearly ruled several years ago that the government overreached in its interpretation of what fell under federal guidelines,” AFBF President Zippy Duvall said, adding that the new rule “protects critical water sources while respecting the efforts of farmers to protect the natural resources they’ve been entrusted with.”
Since the passage of the Clean Water Act in 1972, defining WOTUS has been one of the most complex and contentious issues in federal water policy. Due to lack of statutory language in the law, multiple administrations and courts have grappled with how far federal jurisdiction should reach on wetlands and water features. This has led to decades of conflicting court decisions, shifting regulatory interpretations, intense political debate and implementation challenges.
The 2015 rule under the Obama administration expanded federal protections to ephemeral and intermittent streams, as well as wetlands not directly adjacent to larger waterways.
In 2020, under the first Trump administration, the rule narrowed protections significantly, excluding wetlands, streams and other water bodies that were previously covered.
The Biden administration issued a new rule in 2023 that returned to the pre-2015 regulatory regime. Without incorporating the Sackett decision into the regulatory text, the Biden rule defined WOTUS as relatively permanent waters, such as traditional navigable waters, along with those with a continuous surface connection to them.
“Some ill-defined areas from the Sackett ruling compounded with updated guidance from the Biden administration has led to continued challenges with interpreting the regulation,” said Erin Huston, federal policy consultant for the California Farm Bureau.
The updated rule is meant to establish a “clear, durable, common-sense” WOTUS definition, EPA said, and clarifies whether farmers, landowners and businesses must secure permits before they pursue projects that might impact surface water quality.
“No longer should America’s landowners be forced to spend precious money hiring an attorney or consultant just to tell them whether a water of the United States is on their property,” EPA Administrator Lee Zeldin said.
Under the proposal, certain ditches, prior converted cropland, waste treatment systems and groundwater are not considered WOTUS—revisions that EPA said would “accelerate economic prosperity.” Ephemeral waters, or those with surface water flowing or standing due to rainfall or snow, also are not federally protected, according to the proposal.
In addition, the new rule defines “relatively permanent” water, which is federally regulated, as “standing or continuously flowing bodies of surface water that are standing or continuously flowing year-round or at least during the wet season.”
EPA said the proposal protects water quality “by striking balance between federal and state authority, recognizing that states and tribes are best positioned to appropriately manage their local land and water resources.”
To that end, the federal rule does not change what California requires, as states retain authority to regulate waters within their borders and have their own protections for wetlands and water quality, said Kari Fisher, senior counsel for the California Farm Bureau.
She noted California’s Porter Cologne Water Quality Control Act—which gives the California State Water Resources Control Board and the nine regional water quality control boards the authority to protect surface water, groundwater and wetlands—is more restrictive than the federal Clean Water Act and regulates more groundwater and surface water.
“The big question is if the state of California will in turn regulate even more if the new WOTUS rule is enacted,” Fisher said.
The state water board is expected to release a new report in the coming months that could provide more clarity on how it may change its water quality protection programs in light of the new WOTUS rule.
Ching Lee is senior editor of Ag Alert. She can be reached at clee@cfbf.com.
