EPA takes another look at WOTUS

On Nov. 18 the U.S. Environmental Protection Agency (EPA) and U.S. Department of the Army (the agencies) announced a proposed rule to re-establish the pre-2015 definition of “waters of the United States” (WOTUS).

“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,” said Michael S. Regan, EPA Administrator. “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.”

The agencies are taking comment on this proposed rule for 60 days beginning on the date it is published in the Federal Register. This action advances the agencies’ goal of establishing a durable definition of WOTUS that protects public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and other industries that depend on clean water. 

“The Army recognizes the importance of our nation’s water resources and the role water plays in our communities across the nation,” said Jaime A. Pinkham, Acting Assistant Secretary of the Army for Civil Works. “We remain committed to working with EPA to develop a rule that is informed by our experience and expertise, as well as that of our co-regulators, is mindful of implementation practices, and is shaped by the lived experience of local communities and stakeholders.” 

Recent court decisions have reinforced the need for a stable and certain definition of WOTUS. The U.S. District Courts for both Arizona and New Mexico have vacated the Navigable Waters Protection Rule. In light of the court actions, the agencies have been implementing the pre-2015 regulatory regime nationwide since early September 2021. 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.

The American Farm Bureau expressed disappointment in the action. 

“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,” said Zippy Duvall, American Farm Bureau Federation president. “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.”

For more information on submitting written comment on the proposal or to register for the virtual public hearings on the proposed rule, see www.epa.gov/wotus.

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