In an effort to provide certainty as it rewrites what is defined as a “waters of the U.S.,” the Environmental Protection Agency announced a proposed rule that would re-establish the pre-2015 definition of WOTUS updated to reflect consideration of Supreme Court decisions. However, agricultural groups say repealing the 2020 Navigable Waters Protection Rule is a mistake and does the opposite of providing certainty.
In the last six years, producers have experienced three different WOTUS definitions under different administrations, often times creating patchwork implementation across the nation as courts also got involved.
“In recent years, the only constant with WOTUS has been change, creating a whiplash in how to best protect our waters in communities across America,” says EPA Administrator Michael Regan. “Through our engagement with stakeholders across the country, we’ve heard overwhelming calls for a durable definition of WOTUS that protects the environment and that is grounded in the experience of those who steward our waters. Today’s action advances our process toward a stronger rule that achieves our shared priorities.”
EPA offers assurances that the proposed rule would maintain the longstanding exclusions of the pre-2015 regulations as well as the exemptions and exclusions in the Clean Water Act on which the agricultural community has come to rely.
On June 9, 2021, EPA and the Department of the Army announced their intent to revise the definition of WOTUS. Upon review of the 2020 Navigable Waters Protection Rule, the agencies determined that the rule was “significantly reducing clean water protections.”
Earlier this year, the U.S. District Courts for both Arizona and New Mexico vacated the Navigable Waters Protection Rule written and finalized during the Trump administration. EPA says in light of the court actions, the agencies have been implementing the pre-2015 regulatory regime nationwide since early September 2021. EPA say the latest action is an important step because it would solidify the rules of the road for a stable implementation of “waters of the United States” while the agencies continue to consult with stakeholders to refine the definition of WOTUS in both implementation and future regulatory actions.
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 what many in the agricultural sector believed was 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.
The 2020 Navigable Waters Protection Rule found support from ag stakeholders as giving a more appropriate federal jurisdiction to substantial bodies of water.
National Corn Growers Association President Chris Edgington called the action a step back from the certainty and clarity farmers saw under the NWPR. “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,” he says.
National Cotton Council Chairman Kent Fountain notes the NWPR needs an opportunity to work because it provides agriculture a commonsense and understandable rule that “not only ensures environmental and human health but protects farmland and the right to conduct farming operations in a responsible and economically sustainable manner with flexibility.”
Many water features had been removed from federal control in the NWPR, including those that contain water only in response to rainfall, groundwater, many farm and roadside ditches, prior converted cropland and stock watering ponds.
The NCC supports the 2020 NWPR saying that reverting to a 1980's era WOTUS rule would be a “mistake as it did not help American agriculture.”
The National Cattlemen’s Beef Association also criticized the repeal of NWPR. NCBA Chief Environmental Counsel Scott Yager says NWPR was a solution to the “disastrous” 2015 rule under the Obama administration that vastly expanded federal jurisdiction over small, isolated water features.
NCBA defended the NWPR in court on numerous occasions before it was struck down by a U.S. District Court in Arizona in August 2021. “With the Biden administration announcing their intent to craft their own WOTUS rule, NCBA will remain engaged with the EPA 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,” Yager says.