EPA, Corps again redefine 'waters of the U.S.'; rule includes ephemeral streams and 'significant nexus' test ag dislikes

The Biden administration has redrafted the regulations defining what the Clean Water Act means by "waters of the United States," a topic of controversy for more than nine years, beginning in the Obama administration. It repeals a Trump administration rule that failed in court, but could result in more court action, and the Supreme Court is considering a separate case that could also change the regulatory framework again.

The regulation maintains "longstanding exemptions for farming activities but also trims back an exclusion for prior converted cropland" that was in the Trump-administration rule, Agri-Pulse reports. And it includes "ephemeral streams, which flow in response to precipitation. The Trump administration's 2020 rule categorically excluded ephemeral streams."

"Agriculture interest groups and others said the Biden administration's iteration of the rule will complicate life on the farm," Todd Neeley reports for DTN/The Progressive Farmer. He cites its use of a "significant nexus" test to "establish a scientific connection between smaller water bodies, such as tributaries, and larger, more traditional navigable waters such as rivers." American Farm Bureau Federation President Zippy Duvall said farmers and ranchers "deserve rules that don't require a team of attorneys and consultants to identify 'navigable waters' on their land."

The rule will become effective 60 days after publication in the Federal Register, unless blocked by a court. The Environmental Protection Agency issued the regulation with the Army, whose Corps of Engineers decides whether a parcel of land includes a water of the U.S. The agencies said they would improve consideration of regional differences in applying the rule, and issued a coordination memo with the Department of Agriculture.

Radhika Fox, EPA's assistant administrator for water, told The Associated Press that the rule “balances that protecting of our water resources with the needs of all water users, whether it’s farmers, ranchers, industry, watershed organizations.” AP's Jim Salter and Michael Phillis write, "The new rule is built on a pre-2015 definition, but is more streamlined and includes updates to reflect court opinions, scientific understanding and decades of experience, Fox said. The final rule will modestly increase protections for some streams, wetlands, lakes and ponds, she said." Here is the EPA press release.