The Environmental Protection Agency and the Department of Army released a proposed rule to re-establish the pre-2015 definition of “Waters of the United States” (WOTUS). The proposed rule would remove the Navigable Waters Protection Rule, which was finalized in 2020 and provided long-overdue certainty and clarity for farmers affected by the scope of WOTUS jurisdiction.
According to the press release from the EPA, “This proposed rule would support a stable implementation of ‘waters of the United States’ while the agencies continue to consult with states, Tribes, local governments, and a broad array of stakeholders in both the implementation of WOTUS and future regulatory actions.
In response to this development, National Corn Growers Association President Chris Edgington said, “We are extremely disappointed that this administration is taking us backward by removing a rule that has provided certainty for farmers who are working to feed and power America. NCGA will continue to work with the agencies and advocate for a WOTUS definition that provides farmers clarity about their obligations under the Clean Water Act.”
American Farm Bureau Federation President Zippy Duvall said, “AFBF is disappointed EPA is returning to an overly complicated interim water rule. Overreaching regulations create major permit backlogs for the federal government and result in long delays for farmers and ranchers who are working to keep America fed. We are particularly concerned EPA is bringing back the significant nexus test. This case-by-case test threatens to unfairly regulate large areas of private land miles from the nearest navigable water.
“It’s troubling that EPA is putting a framework in place before completing the promised stakeholder engagement. Administrator Regan pledged to listen to the needs of farmers and ranchers and committed to a rule that is not overly burdensome. We urge him to stay true to his word.”
Congress enacted the Clean Water Act in 1972 with the statutory objective “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Since 1986, the federal government has been attempting to define what water features count as a “water of the U.S.” for the purpose of environmental regulation under the Clean Water Act of 1972.
In 2015, the EPA and Army Corps of Engineers finalized a widely overreaching WOTUS definition that placed stock ponds, ephemeral features (water that only flows during rain), grassed waterways, and other isolated bodies of water that impact agriculture under federal control.
Then in 2020, the Navigable Waters Protection Rule (NWPR) limited federal jurisdiction to substantial bodies of water and was a major improvement to the 2015 WOTUS rule. However, it was struck down by a U.S. District Court in Arizona in August 2021. As a result of the court decision, the EPA is relying on the pre-1986 rules, resulting in producers experiencing three different WOTUS definitions under the law in the past six years.
“The NWPR was a solution to the disastrous 2015 ‘Waters of the United States’ (WOTUS) rule that vastly expanded federal jurisdiction over small, isolated water features. NCBA supported the NWPR and was disappointed when it was struck down in court,” said National Cattlemen’s Beef Association Chief Environmental Counsel Scott Yager. “With the Biden administration announcing their intent to craft their own WOTUS rule, NCBA will remain engaged with the Environmental Protection Agency to ensure that any future rulemaking respects the needs of American cattle producers and their right to make investments in their land and care for their cattle.”
