On December 30, 2022, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) released a final Waters of the United States (WOTUS) rule, which will become effective 60 days after it is published in the Federal Register. The new rule changes how the federal government determines which waters are subject to regulation under the Clean Water Act. This is the third time since 2015 that an administration has changed WOTUS rules. EPA’s press release provides additional information and memos explaining how the new rules will be implemented and coordinated across federal agencies. The agency also released a fact sheet to assist landowners in determining whether activities on their land require a Clean Water Act permit.
Among the most significant changes included in the new rule are the regulation of ephemeral streams and the reinstitution of the “significant nexus standard” to determine if waters are covered under WOTUS. The new rule retains important exemptions for agriculture and conservation including plowing, seeding, and the maintenance of drainage ditches, irrigation diches, and stock ponds. The rule also maintains exemptions for Prior Converted Cropland (PCC), but will no longer exempt PCC that has undergone a “change in use.” The U.S. Supreme Court is expected to decide the Sackett case early this year, which may require EPA and USACE to modify the new rule. Additional legal challenges are expected and could also result in further revisions.
In 2019, NACD submitted comments to EPA to inform the development of the rule and encourage a locally-led approach to WOTUS determinations. NACD also submitted comments to the agency in 2021. NACD looks forward to working closely with our members, federal agency partners, and all stakeholders to help guide the implementation of the new rule.