The EPA in conjunction with the U.S. Army Corp of Engineers published the final “Revised Definition of the Waters of the United States” (WOTUS) on Wednesday. The definition will be effective March 20, 2023.
It’s a significant action that greatly expands the scope of federal jurisdiction to all those areas captured under the new definition, especially those laws and legal actions derived from the Clean Water Act. You can read the full federal register publication here.
The EPA’s news release on the publication of the rule states, “The final rule restores essential water protections that were in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters. As a result, this action will strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies, and downstream communities.”
There is currently an active U.S. Supreme Court case on the matter. North Dakota’s leadership has uniformly condemned the new definition, describing it as federal overreach that will have negative impacts on the state’s agricultural industry. Read their comments below.
ND Leadership Comment on Revised WOTUS Definition
-- Governor Doug Burgum
After North Dakota led the fight against the Obama administration’s misguided WOTUS rule, it’s disappointing that the Biden administration is doubling down on this overreaching policy. The EPA’s reworked version of WOTUS has the same problems as its predecessor, violating landowner rights and creating confusion for farmers, ranchers and industry by adding red tape and erroneously classifying almost every stream, pond and wetland as a federally managed water. The result will be higher costs for food, fuel and other consumer goods with no substantial benefit to the environment. North Dakota has some of the cleanest water in the nation, and this proposed rule threatens our state’s legitimate authority to protect our own waters from pollution. It’s a prime example of federal overreach that ought to be withdrawn, or at least delayed until the U.S. Supreme Court issues a decision in the Sackett v. EPA case related to Clean Water Act jurisdiction. We look forward to supporting North Dakota’s attorney general in challenging this new rule.
-- Ag Commissioner Doug Goehring
I am disappointed that this administration is taking a step backward, which will infringe on our state’s sovereignty and will federalize almost all of North Dakota’s waters,” Goehring said. “North Dakota prides itself on the effective management of its waters for its citizens. I will work to protect the unique interests of North Dakota’s landowners, farmers, ranchers and other stakeholders in opposing this rule and the regulatory uncertainty it creates.
-- Senator John Hoeven
The Biden administration’s new WOTUS definition is a costly federal overreach that we cannot afford. President Biden continues to push America down the wrong path with higher taxes and burdensome regulations that will stifle needed energy development and only make inflation worse. We should instead take a states-first approach to protecting our land and waters that respects private property rights and will help reduce costs across the economy, including for our agriculture and energy producers.
-- Senator Kevin Cramer
It does not make sense to redefine WOTUS while the Supreme Court considers Sackett v. EPA. The new definition also represents blatant overreach by the federal government which intrudes on North Dakota’s jurisdiction over waters within its border and seeks to assert federal control over state and private property. North Dakota was instrumental in achieving the unprecedented stay of the 2015 Obama WOTUS Rule and should lead this fight once again.
