EPA’s ‘Waters’ rule fluid, as courts block enforcement in 26 states

A creek near Cushing, Oklahoma, will remain under state environmental jurisdiction as long as the Water of the United States rule is suspended in the state. Arizona and 23 other states are currently subject to the federal rule. (Photo by Brooklyn Wayland/Gaylord News)

WASHINGTON – After a years-long fight between presidential administrations over the Clean Water Act, the on-again, off-again struggle over the Waters of the United States rule is on again. And off again, depending on what state you live in.

A federal district judge in North Dakota last week blocked enforcement of the Biden administration’s Waters of the U.S. rule in 24 states. That came just weeks after a federal district judge in Texas blocked WOTUS in Texas and Idaho.

The Environmental Protection Agency said it would not enforce the new rules – for now – in those 26 states, using a pre-2015 rule instead to determine whether a body of water is subject to federal jurisdiction under the Clean Water Act.

For the rest of the states – which includes Arizona – the new rule is in effect, which covers a broader range of water and includes a test to determine jurisdiction on a case-by-case basis.

Meanwhile, as courts and administrations go back and forth on the new rule, farmers and ranchers find themselves in a legal twilight zone.

Oklahoma is one of the 26 states where the new rule is on hold. Michael Kelsey, vice president of the Oklahoma Cattlemen’s Association, said the pause is a win for farmers and ranchers, but the remaining uncertainty makes it hard for them to do maintenance and work on property that involves water bodies – such as building a pond to provide water for cattle or crops.

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“Those are some of the situations that we have heard producers express frustration with not knowing exactly what the rules are at (the EPA) because they keep changing,” Kelsey said.

As lower courts splinter the country into two camps, the Supreme Court is mulling a case that may bring everyone back to the same page: Sackett v. EPA is expected to clarify what method is appropriate for determining jurisdiction over water bodies. The court has yet to hand down a ruling in that case, which was argued on Oct. 3.

The nation has been waffling over how to define the term “waters of the United States” in the Clean Water Act since the Obama administration. That rule was reversed and reined in by the Trump administration, which said the federal government is responsible for regulating navigable waters and the rest is for state and local regulation.

The newest rule – which took effect March 20 – replaces the Trump-era rule and extends the federal government’s jurisdiction. Unlike the Obama-era rule, the new rule includes the “significant nexus test” which is applicable to any water body on private property. The test looks to see if a water body originates from navigable waters, thus putting it under federal jurisdiction.

Congress in March passed a joint resolution, largely along party lines, trying to reverse the latest WOTUS rule. All Arizona Democrats voted against the resolution while the state’s Republican lawmakers, joined by Sen. Kyrsten Sinema, I-Ariz., voted for it.

President Joe Biden vetoed the resolution this month.

“The resolution would leave Americans without a clear definition of ‘Waters of the United States,'” Biden said in his veto message. “The resolution would also negatively affect tens of millions of United States households that depend on healthy wetlands and streams.”

The House is scheduled to consider an override of that veto this week, but there do not appear to have been enough backers in the original vote to mount an override.

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Meanwhile, Rep. Frank Lucas, R-Okla., praised the North Dakota ruling.

“America’s farmers, ranchers, and landowners deserve a WOTUS definition that is fair and provides regulatory clarity and certainty to agriculture and businesses,” Lucas said in a statement.

Kelsey said the ruling by the court in North Dakota “recognizes that a one-size-fits-all mentality is not the best.”

“What works for water management in Idabel, which is in the extreme southeast part of the state, is not the same for Guymon, which is way up in the panhandle,” he said.

The National Cattlemen’s Beef Association is hosting state affiliates in Washington next week to lobby Congress, and WOTUS is expected to be a key topic.

Kelsey believes the Supreme Court’s decision in Sackett may provide clarity, but worries the rules will continue to be rewritten by each new presidential administration. He said ultimately farmers and ranchers just want consistency.

“How long is this rule going to be in effect? If we get a new president, is he or she going to rescind it and then we get another new rule?” Kelsey said. “I know I’m being redundant, but we just really need this certainty.”

Gaylord News is a reporting project of the University of Oklahoma Gaylord College of Journalism and Mass Communication, which has partnered with Cronkite News to expand coverage of Indigenous communities.