MACON, Ga. — On Aug. 29, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army announced a final rule amending the 2023 definition of “Waters of the United States” to conform with the Supreme Court decision in Sackett v. EPA, which was announced on May 25.

While the agencies removed the “significant nexus” test as a means for determining their jurisdiction under the Clean Water Act, American Farm Bureau expressed disappointment that the amended rule did not reflect more changes.

“EPA had a golden opportunity to write a Waters of the U.S. Rule that’s fair to farmers and stands the test of time, but instead chose to continue government overreach and revise only a small slice of the rule that was rejected by the Supreme Court,” said AFBF President Zippy Duvall. “We’re pleased the vague and confusing ‘significant nexus’ test has been eliminated as the Supreme Court dictated. But EPA has ignored other clear concerns raised by the Justices, 26 states, and farmers across the country about the rule’s failure to respect private property rights and the Clean Water Act.”

According to an EPA fact sheet, the amended rule makes the following changes:

• Removes interstate wetlands from the text of the interstate waters provision;

• removes the significant nexus standard from tributaries, adjacent wetlands and additional waters provisions;

• removes wetlands and streams from the text of the additional waters provision;

• revises the definition of adjacent waters to mean “having a continuous surface connection”;

• deletes the definition of the term “significantly affect.”

AFBF maintains that the amended rule left in place much of the overreach that Farm Bureau and many others have been opposing, including the agencies’ vague “relatively permanent” standard. AFBF indicated that it will persist in its legal challenge to the rule to protect farmers from the threat of penalties and prosecution for simply farming their land.

“Farmers and ranchers share the goal of protecting the nation’s waterways,” Duvall said. “They deserve clear rules that respect their dedication and careful stewardship.”

The EPA had webinars planned for Sept. 12, 13 and 20 to provide updates on the definition of WOTUS. The webinars have reached registration capacity, though the agencies indicated they will post a recording of the webinar to EPA’s website.

–Georgia Farm Bureau