“Waters of the United States” and the Agricultural Production Sector: Sweeping Change or More of the Same?

EPA and the Corps’ promulgation of a new definition of “waters of the United States” under the CWA has prompted a fierce rhetorical and legal debate. EPA maintains that the agencies’ jurisdiction may actually be limited by the new definition, while agricultural organizations maintain that jurisdiction is increased in violation of the agencies’ statutory authority. While heavily engaged in public dialogue, neither side has attempted to offer a systematic legal analysis comparing the scope of jurisdiction under the preexisting rule to its scope under the final rule. This Article engages in such an analysis and ultimately shows that the agencies’ jurisdiction under the new definition is, if at all changed, more limited than under the preexisting rule.