LINCOLN, Neb. (DTN) -- Agriculture, environmental and other groups agree that the next waters of the U.S. rule should be clear, consistent and predictable, those groups said in comments submitted to the Trump administration before a comment period ended April 23.

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers also announced this week that they will host several stakeholder listening sessions next week on the WOTUS rule, scheduled for April 29 and May 1.

The WOTUS definition has changed several times during the past few presidential administrations and has been a political hot potato fought about in courts for years.

The range of comments submitted, however, show the same decades-long divide exists between agriculture and industry groups that want a lesser regulatory burden, and environmental groups that advocate for expansive protections of water.

All the commenters recognize the Supreme Court's decision in Sackett v. EPA as a pivotal influence on the direction WOTUS needs to go. Read more about that here: https://www.dtnpf.com/….

AMERICAN FARM BUREAU

The American Farm Bureau Federation said the Biden administration's changes to the WOTUS rule after Sackett fell short of what was required, leaving farmers and ranchers without certainty.

"Just as the Supreme Court was considering the definition of WOTUS in Sackett v. EPA, the Biden administration published its new definition of WOTUS under the Biden Rule2 that heavily relied on the complex, subjective and idiosyncratic 'significant nexus' test," AFBF said in comments.

"Four months later, the court unanimously decided that the 'significant nexus' test was unlawful and incompatible with the CWA (Clean Water Act) and directed the agencies to adopt the 'relatively permanent' test and redefine 'adjacency' as it pertains to their jurisdiction over wetlands."

The Biden administration in response issued a rule that was not subject to notice and comment. See more here: https://www.dtnpf.com/….

"The conforming rule took the language from the Biden rule and simply deleted any reference to the 'significant nexus' test and narrowed the definition of 'adjacent,'" AFBF said.

AFBF said the conforming rule "failed to provide" an explanation of how agencies would interpret the "relatively permanent" standard.

"We believe that the agencies may have intentionally left these terms undefined to expand their regulatory reach," AFBF said.

"Simply put, the agencies exploited these ambiguities to give themselves the latitude to regulate land features as they please going forward. During this time, the agencies weren't even trying to hide the fact that they were violating Sackett through their field memos (essentially, instructions to Corps and EPA staff on how to implement the rule). Through these field memos, the agencies declared expansive interpretations of the 'relatively permanent' and 'continuous surface connection' requirements that cannot be squared with the Sackett decision."

AFBF said the agencies should amend the conforming rule's regulatory text and preamble to clarify "relatively permanent," "continuous surface connection" and "indistinguishable," aligning with Sackett and other Supreme Court rulings including Rapanos v. U.S., while avoiding repealing the Biden rule entirely.

AFBF said it would like to see a new rule make targeted changes to ensure clarity, to respect state authority and protect farmers from regulatory overreach.

The group also asked the Trump administration to require wetlands to directly abut WOTUS with a continuous surface water connection, making them indistinguishable, which was required in the Sackett ruling.

AFBF said wetlands that are separated by natural or artificial barriers including berms and ditches should be excluded. The group said it also wants the agencies to clarify that physical abutment or non-aquatic connections do not meet the "continuous surface connection" requirement.

MORE AG, STATE INTERESTS

The American Soybean Association. representing about 500,000 farmers, said in comments it supports the definition of "relatively permanent" waters that excludes intermittent or ephemeral waters, found in the first Trump administration's 2020 Navigable Waters Protection Rule. See that here: https://www.dtnpf.com/….

"Soybean growers across United States have been subject to a patchwork of approaches and inconsistent regulatory frameworks for WOTUS for decades," the group said in comments.

"Producers need certainty that their farming activities do not incur penalties due to unclear restrictions on their property."

The state of Iowa requested that the agencies create a "specific and concise definition" for the term "relatively permanent."

"Under the 2020 Navigable Waters Protection Rule only perennial and intermittent tributaries that contribute flow downstream in a typical year to a traditional navigable water or the territorial seas were considered jurisdictional, whereas ephemeral streams were categorically excluded from jurisdiction," the state said.

The use of "flow regime" to determine whether a tributary is regulated is "reasonable," Iowa officials said in comments.

Iowa also calls for a specific definition of the term "continuous surface connection" as well as the situations where the term is used to establish jurisdiction.

"The guidance provided in the joint memorandum from EPA and the Department of the Army dated March 12, 2025, interprets waters of the U.S. to include 'only those adjacent wetlands that have a continuous surface connection because they directly abut' jurisdictional waters," the state said.

"The state of Iowa supports this approach."

The Washington Cattle Feeders Association said its members need a WOTUS definition that narrows the CWA scope to "relatively permanent" waters such as oceans, rivers and lakes that have consistent flow, or "continuous surface connection."

"With these changes from current agency practices, implementation of the Clean Water Act's onerous requirements will appropriately be limited to the activities and waterbodies that Congress intended to regulate when it enacted this law 50 years ago," the cattle feeders said.

PACIFIC LEGAL FOUNDATION

The Pacific Legal Foundation that represented the plaintiffs in the Sackett case, said in comments that for more than 50 years the agencies interpreted the term "navigable waters" to include minor ditches, isolated wetlands and dryland features, essentially exceeding Clean Water Act authority.

The foundation urges the agencies to abandon their pattern of overbroad regulation and adopt a WOTUS definition that adheres to Sackett's narrow scope, ensuring clarity, due process and respect for property rights.

Environmental groups such as the Natural Resources Defense Council told the agencies of a differing view of how the Supreme Court handled the Sackett case and called for a WOTUS rule that defends the CWA's objective to protect the nation's waters.

NRDC said the Supreme Court's ruling was incorrect because it limits protections to "relatively permanent" waters and adjacent wetlands.

"Going beyond the ruling to codify polluter lobbyists' preferred interpretations of hand-picked language from the Sackett opinion would ignore the full context of that decision and, more importantly, would turn the already-destructive decision into a near-elimination of the Clean Water Act for certain kinds of waters," NRDC said in its submitted comments.

"Implementing that kind of retreat would condemn communities around the country to increased flooding, to more polluted drinking water sources, and to diminished wildlife and recreational opportunities."

The NRDC said cutting back Clean Water Act protections would put at risk an estimated 38 million to 71 million acres of wetlands. The group calls for maintaining robust, science-based regulations.

Read more on DTN:

"Landowner: Dream Dashed by EPA Pursuit," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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