WOTUS Ruling's Impact

Between two national holidays, The United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) announced a final rule regarding the revised definition of Waters of the United States (WOTUS). This final ruling, which occurred on December 30th, 2022, will take effect 60 days after being published in the Federal Register.

The rule will lead to a world of uncertainty for Oregon's farmers and ranchers, increasing federal government overreach and drastically increasing federal permitting and maintenance activity costs.

For the last decade, WOTUS has been a political football, with Oregon's natural resources organizations, including Oregonians for Food & Shelter and Oregon Farm Bureau, preferring the former administration’s Navigable Waters Protection Rule, which provided clear objectives and goals. Although WOTUS has been a primary topic over the three administrations, water regulation in the U.S. began long before.

For historical reference, the first significant law regarding water discharge was the 1948 Federal Water Pollution Control Act. After increasing public interest in water, in 1972, Congressional amendments occurred, and the Federal Water Pollution Control Act became known as the Clean Water Act.

Federal jurisdiction over "navigable waters" in the 1972 Clean Water Act became defined within the "waters of the United States" (WOTUS).

To date, the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) ("the Agencies") have maintained authority to define WOTUS. Since then, the WOTUS definition has been amended multiple times; however, since 2015, changes to WOTUS have caused increased uncertainty for rural America. Especially for those who protect water quality through activities such as farming, ranching, and building community infrastructure.

Before the passing of Biden's new rule, public comment was provided by natural resources communities and rural stakeholders regarding the proposed rule. Tiffany Monroe, OFS Associate Director, participated in an EPA Round Table Discussion on the proposed rule. Themes from rural stakeholders included: requesting a process pause until the U.S. Supreme Court ruled on Sackett v. Environmental Protection Agency (to determine which waters qualify as “navigable waters” and therefore subject to federal jurisdiction of the Clean Water Act),  and a series of recommendations for necessary changes to the proposed rule to decrease harm to rural America.

Despite feedback, EPA and the Corps passed the rule, which will revert to a similar pre-2015 WOTUS, moving further away from Congressional intent.

The Biden WOTUS Rule does include exemptions and exclusions, but it remains uncertain. In order clarify rules and identify navigable water on their land, farmers, ranchers, and infrastructure builders will require a team of attorneys, be subject to increased permitting fees, and wait and month or even years costing upwards tens of thousands of dollars just to conduct regular maintenance activities on their operations. 

To learn more, see, What They are Saying: Biden's WOTUS Rule is an Attack on Rural America.