The Biden administration announced in July that it was ditching the Navigable Waters Protection Rule promulgated in June 2020 by the Trump administration to replace it with the Obama-era WOTUS Rule. That 2015 regulation gave EPA broad jurisdiction over U.S. waters to include, among other water bodies, upstream waters and intermittent and ephemeral streams such as the kind farmers use for drainage and irrigation. It also covered lands adjacent to such waters.
Prior to that rule, EPA’s jurisdiction over waterways — based on several U.S. Supreme Court decisions — included “navigable” waters and waters with a significant hydrologic connection to navigable waters. The Biden administration said it would revert to the pre-2015 regulation and update it consistent with relevant Supreme Court decisions and recommendations from affected stakeholders, who were given until Sept. 3 to submit comments.
The American Farm Bureau Federation submitted recommendations on the definition of “waters of the United States” (WOTUS). The comments were filed with the Environmental Protection Agency (EPA) and the Army Corps of Engineers.
In the recommendations, AFBF expresses disappointment in EPA’s decision to replace the Navigable Waters Protection Rule (NWPR) and explained why the rule should be left in place.
“To correct the fatal flaws in the 2015 WOTUS Rule, the Agencies carefully struck ‘a reasonable and appropriate balance between Federal and State waters’ that is ‘intended to ensure that the agencies operate within the scope of the Federal government’s authority over navigable waters.’ The NWPR also brought an end to all of the uncertainty created by the Agencies’ aggressive assertions of jurisdiction under prior definitions by including ‘categorical bright lines’ to improve clarity and predictability,” AFBF said. “The Agencies can ensure clean water for all Americans through a blend of the CWA’s regulatory and non-regulatory approaches, just as Congress intended. It is unnecessary (and unlawful) to define non-navigable, intrastate, mostly dry features that are far removed from navigable waters as ‘waters of the United States’ to try to achieve the Act’s objective.”
AFBF’s recommendations to EPA and the Corps include ensuring that any new regulations:
- Adhere to Supreme Court precedents;
- Use Congress’ CWA policy as a guidepost in rulemaking;
- Define WOTUS in clear terms that are easy to apply in the field;
- Limit jurisdiction over non-navigable tributaries;
- Limit jurisdiction of wetlands to those that abut other WOTUS; and
- Exclude prior converted cropland.
In April, EPA Administrator Michael Regan told Congress he does not intend to go back to the 2015 definition of WOTUS. He said during a House Appropriations Subcommittee budget hearing, “We don’t have any intention of going back to the original Obama Waters of the U.S. verbatim.” Regan also committed to a rule “that is not overly burdensome.”
Any attempt to regulate typically dry low spots on farmland and pastures as jurisdictional “waters” would undeniably constitute overly burdensome regulation. As explained in AFBF’s recommendations, it would mean any activity on those lands that moves dirt could be subject to regulation. Everyday activities such as plowing, planting or fence building could trigger harsh civil or even criminal penalties unless a permit is obtained. Federal permitting would require tens of thousands of dollars in additional costs, which is beyond the means of many farm and ranch families, and can take years to obtain.