October 19, 2021

WOTUS revision returns to table

WASHINGTON — The U.S. Environmental Protection Agency and Department of the Army recently announced the intention to initiate a new rulemaking process for the waters of the United States.

If the process reaches fruition this year, this would mark the third time in six years that WOTUS regulations have been revised.

The agencies’ intent is to “restore the protections in place prior to the 2015 WOTUS implementation, and anticipates developing a new rule that defines WOTUS and is informed by a robust engagement process, as well as the experience of implementing the pre-2015 rule, the Obama-era Clean Water Rule, and the Trump-era Navigable Waters Protection Rule.”

The process will not begin until EPA officially releases a proposed new rule, possibly later this year.

“After reviewing the Navigable Waters Protection Rule as directed by President Biden, the EPA and Department of the Army have determined that this rule is leading to significant environmental degradation,” said EPA Administrator Michael Regan.

“We are committed to establishing a durable definition of ‘waters of the United States’ based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders, so we can better protect our nation’s waters, foster economic growth and support thriving communities.”

“Communities deserve to have our nation’s waters protected. However, the Navigable Waters Protection Rule has resulted in a 25 percentage point reduction in determinations of waters that would otherwise be afforded protection,” said Acting Assistant Secretary of the Army for Civil Works Jaime Pinkham.

“Together, the Department of the Army and EPA will develop a rule that is informed by our technical expertise, is straightforward to implement by our agencies and our state and tribal co-regulators and is shaped by the lived experience of local communities.”

Considerations

The agencies’ new regulatory effort will be guided by the following considerations:

• Protecting water resources and our communities consistent with the Clean Water Act.

• The latest science and the effects of climate change on our waters.

• Emphasizing a rule with a practical implementation approach for state and tribal partners.

• Reflecting the experience of and input received from landowners, the agricultural community that fuels and feeds the world, states, tribes, local governments, community organizations, environmental groups and disadvantaged communities with environmental justice concerns.

Critics of the 2015 WOTUS said the definitions were considered too vague and subject to interpretation that went too far with its jurisdiction stretching onto farmland ditches and field low spots that temporarily have water after a rainfall.

The final rule of the 2020 WOTUS detailed categories of exclusions, features that are not “waters of the United States,” such as features that only contain water in direct response to rainfall – for example, ephemeral features; groundwater; many ditches, including most farm and roadside ditches; prior converted cropland; farm and sock watering ponds; and waste treatment systems.

Disappointment

Farm leaders expressed their disappointment in EPA’s intent to revise the WOTUS definition.

“Illinois Farm Bureau is extremely disappointed that the EPA and Army Corps of Engineers have announced their intention to reverse the Navigable Waters Protection Rule, a rule that was hailed by farmers just one year ago for the clarity and common-sense oversight it brought to clean water efforts,” said Richard Guebert Jr., Illinois Farm Bureau president.

“Illinois farmers are counting on Administrator Regan to uphold his pledge that there will not be a return to the overreaching regulations found in the 2015 Waters of the U.S. Rule. The pendulum swing of federal clean water regulation leads to tremendous uncertainty. Continuous change brings zero benefit to farmers and landowners, the regulated community, environmentalists, politicians, or — most importantly — the environment.

“Clean water is a top priority for Illinois farmers. Our members must be able to make sense of set regulations so they can farm with clarity and confidence as they push forward on stewardship efforts. We must see EPA create an enduring definition of WOTUS that stops the pendulum swing from administration to administration — and includes stakeholder input from those working the land each day. We have extended an invitation to current EPA and Army Corps of Engineers leadership to visit Illinois to see the issues firsthand and again extend that invitation for critical stakeholder engagement.”

“The National Corn Growers Association is disappointed in the EPA’s announcement of its intention to revise the Navigable Waters Protection Rule. The current rule provided long-overdue certainty and clarity for farmers about their obligations under the Clean Water Act,” said John Linder, NCGA president.

“Clean water is important to America’s corn farmers, and we are committed to protecting our environment and the communities where we live and work. We are dedicated to protecting our water resources for future generations and will work with the EPA to implore that they recognize the efforts of agriculture and not return to an overly burdensome regulation.”

“This is an important moment for Administrator Regan and will be pivotal to his ability to earn the trust of farmers on this and other administration priorities. He must keep his word to recognize the efforts of agriculture and not return to flawed, overly complicated and excessive regulations,” said Zippy Duvall, American Farm Bureau Federation president.

“We call on EPA to respect the statute, recognize the burden that overreaching regulation places on farmers and ranchers and not write the term ‘navigable’ out of the Clean Water Act. On this issue, and particularly prior converted croplands and ephemerals, we also urge Secretary Vilsack to ensure that we don’t return to the regulatory land grab that was the 2015 WOTUS Rule.”

Tom Doran

Tom Doran

Field Editor