The U.S. Environmental Protection Agency (EPA) and the Department of the Army have been engaging with various stakeholders, including state and tribal co-regulators, industry representatives, agricultural stakeholders, environmental groups, conservation organizations, and the general public. This engagement focuses on implementing the definition of "waters of the United States" (WOTUS) following the Supreme Court's 2023 decision in Sackett v. Environmental Protection Agency.
During a May listening session for industry and agriculture, along with written comments from the FFBF and other Farm Bureaus nationwide, the agricultural community requested changes and clarity in defining WOTUS. They highlighted several key areas:
For "relatively permanent" waters, regulations should emphasize the "ordinary parlance" test as outlined in Sackett. This would limit agency regulation to traditional geographical features like streams, oceans, rivers, and lakes. The regulation should also establish minimum flow volume and duration requirements to ensure only natural features with continuously flowing or standing water for most of the year are regulated. Artificial canals or ditches should not fall under federal jurisdiction unless used for navigation.
Regarding "continuous surface connection," wetlands should be regulated only if they have a continuous surface connection to covered waters. Wetlands separated by natural or artificial barriers should not be considered jurisdictional. Any new rulemaking should clearly state that only wetlands with a continuous aquatic surface connection to covered waters may be regulated under the Clean Water Act (CWA). Physical abutment alone is insufficient for CWA authority.
Lastly, there is a call for EPA to establish clear parameters for which waters are jurisdictional under the CWA while leaving non-jurisdictional waters to state regulation.