- DTN Headline News
WOTUS Rule Expected Next Week
Monday, December 10, 2018 2:30PM CST
By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- Dry land would no longer be subject to Clean Water Act jurisdiction and the so-called "significant nexus" test would be eliminated in a newly proposed waters of the United States, or WOTUS, rule expected to be released by the EPA next week.

Both the New York Times and E&E News reported Thursday the rule is set for release next week. An agriculture source with knowledge of the rule told DTN the release would come "sometime next week."

The EPA did not respond to three DTN requests for comment.

Back in February 2017, the EPA published a signing statement in the Federal Register. That document indicated the agency was taking a different direction on a new rule, which would include a much narrower definition of WOTUS.

Citing an EPA memorandum they obtained, E&E News and the Times reported this week the new rule would exempt ephemeral streams and related features that are wet only after rain. The new proposal is said to cover only wetlands that are adjacent and connected to other jurisdictional waters.

Now former EPA Administrator Scott Pruitt indicated in the signing document that a rewrite may include the removal of the so-called "significant nexus" test. That test essentially brought even areas of dry land where water previously flowed under the EPA umbrella for CWA enforcement.

In the document signed by Pruitt in 2017, he indicated a new rule may throw out the significant-nexus standard.

"Today, the EPA and the Army announce their intention to review that rule, and provide advanced notice of a forthcoming proposed rulemaking consistent with the executive order," the document stated.

"In doing so, the agencies will consider interpreting the term 'navigable waters,' as defined in the CWA in a manner consistent with the opinion of Justice (Antonin) Scalia in Rapanos (v. U.S.). It is important that stakeholders and the public at large have certainty as to how the CWA applies to their activities."

Some legal challenges to the 2015 rule were filed based on changes EPA made to the rule following a public comment period. Those changes included setting actual distances between adjacent wetlands and jurisdictional waters. Plaintiffs have argued the agency should have made those proposals known prior to public comment periods.


The 2006 Rapanos case involved a Michigan landowner who filled in a wetland without a permit. A circuit court ruled that because the wetland was adjacent to a tributary, the wetland was considered to be a jurisdictional water.

The U.S. Supreme Court disagreed with the lower court, and a plurality of the high court ruled the Clean Water Act did not give broad authority over all waters.

In writing the WOTUS rule, however, the Obama EPA clung to the opinion of Justice Anthony Kennedy who suggested a significant-nexus test is valid.

"Wetlands possess the requisite nexus, and thus come within the statutory phrase 'navigable waters,' if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable,'" Justice Kennedy wrote.

"This definition may include wetlands without an actual hydrological connection to navigable-in-fact waters (but presumably not wholly isolated)."


In the document signed by Pruitt, EPA suggested it will consider the plural opinion expressed by the late Scalia in Rapanos, who disagreed that the EPA has far wider jurisdiction on waters.

"In applying the definition to 'ephemeral streams,' 'wet meadows,' storm sewers and culverts, 'directional sheet flow during storm events,' drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term 'waters of the United States' beyond parody," Scalia wrote.

"The plain language of the statute simply does not authorize this 'land is waters' approach to federal jurisdiction."

In the document signed by Pruitt, the agency acknowledges "the question of what is a 'water of the United States' is one that has generated substantial interest and uncertainty, especially among states, small businesses, the agricultural communities, and environmental organizations, because it relates to the extent of jurisdiction for federal and relevant state regulations.

"... Through new rulemaking, the EPA and the Army seek to provide greater clarity and regulatory certainty concerning the definition of 'waters of the United States,' consistent with the principles outlined in the executive order and the agencies' legal authority."

In the spring of 2017, the EPA formally announced its intentions to rewrite the 2015 rule and even finalized a rule to suspend it while a rewrite continued. The rule to suspend was thrown out by a federal court in South Carolina, meaning a previous national injunction suspending the rule was no longer in effect.


Agriculture and other industry groups, along with state governments across the country, alleged the 2015 WOTUS rule expanded federal jurisdiction on waters not traditionally protected.

The definition of navigable waters was expanded in the WOTUS rule to include ditches, puddles and even dry areas where there was evidence of water previously.

Those areas, the Obama administration's EPA contended, should be considered waters of the U.S. because they are linked to streams, rivers and other traditional navigable waters by a so-called significant nexus.

Agricultural and environmental groups along with state attorneys general, continue to fight it out in court on the 2015 WOTUS rule finalized by President Barack Obama's EPA.

There continues to be a split between which states fall under jurisdiction of the 2015 rule, as a result of a number of ongoing court actions and decisions in courts across the country.

This sent various plaintiffs across the country scrambling for legal protection against the 2015 rule that many industries agree greatly expanded EPA's authority over water, even on dry land.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN


blog iconDTN Blogs & Forums
DTN Market Matters Blog
Editorial Staff
Monday, December 10, 2018 9:15AM CST
Friday, December 7, 2018 2:55PM CST
Friday, November 30, 2018 9:59AM CST
Technically Speaking
Editorial Staff
Monday, December 10, 2018 9:17AM CST
Monday, November 26, 2018 10:39AM CST
Monday, November 19, 2018 10:39AM CST
Fundamentally Speaking
Joel Karlin
DTN Contributing Analyst
Friday, December 7, 2018 7:08AM CST
Wednesday, December 5, 2018 10:10AM CST
Tuesday, December 4, 2018 10:28AM CST
DTN Ag Policy Blog
Chris Clayton
DTN Ag Policy Editor
Tuesday, December 11, 2018 2:20PM CST
Monday, December 10, 2018 9:13PM CST
Friday, December 7, 2018 6:10AM CST
Minding Ag's Business
Katie Behlinger
Farm Business Editor
Monday, December 10, 2018 2:16PM CST
Thursday, October 18, 2018 3:08PM CST
Thursday, October 11, 2018 10:05AM CST
DTN Ag Weather Forum
Bryce Anderson
DTN Ag Meteorologist and DTN Analyst
Tuesday, December 11, 2018 3:23PM CST
Thursday, December 6, 2018 2:43PM CST
Tuesday, December 4, 2018 2:42PM CST
DTN Ethanol Blog
Editorial Staff
Thursday, December 6, 2018 12:55PM CST
Monday, December 3, 2018 11:31AM CST
Friday, November 30, 2018 1:23PM CST
DTN Production Blog
Pam Smith
Crops Technology Editor
Friday, November 16, 2018 4:00PM CST
Thursday, November 1, 2018 6:46PM CST
Monday, October 8, 2018 7:04PM CST
Harrington's Sort & Cull
John Harrington
DTN Livestock Analyst
Friday, December 7, 2018 4:51PM CST
Thursday, November 29, 2018 5:04PM CST
Monday, November 26, 2018 9:38AM CST
South America Calling
Editorial Staff
Tuesday, November 27, 2018 2:39PM CST
Tuesday, November 20, 2018 7:12AM CST
Friday, November 16, 2018 4:22PM CST
An Urban’s Rural View
Urban Lehner
Editor Emeritus
Monday, December 3, 2018 11:32AM CST
Monday, November 19, 2018 5:21PM CST
Friday, November 9, 2018 5:27PM CST
Machinery Chatter
Dan Miller
Progressive Farmer Senior Editor
Tuesday, November 20, 2018 11:58AM CST
Thursday, October 18, 2018 10:53AM CST
Friday, October 5, 2018 10:16AM CST
Canadian Markets
Cliff Jamieson
Canadian Grains Analyst
Wednesday, December 12, 2018 2:58PM CST
Tuesday, December 11, 2018 9:28PM CST
Monday, December 10, 2018 3:35PM CST
Editor’s Notebook
Greg D. Horstmeier
DTN Editor-in-Chief
Monday, November 26, 2018 9:13PM CST
Friday, November 2, 2018 5:31PM CST
Friday, August 24, 2018 5:53PM CST
Copyright DTN. All rights reserved. Disclaimer.
Powered By DTN