EPA returns WOTUS to pre-2015 definition | TheFencePost.com

EPA returns WOTUS to pre-2015 definition

The Environmental Protection Agency and U.S. Department of the Army on Thursday announced a proposed rule to re-establish the pre-2015 definition of “waters of the United States” (WOTUS) which had been in place for decades, updated to reflect consideration of Supreme Court decisions.

“It is the first step in eventually replacing the Trump-era rule with a new rule sometime next year,” DTN/The Progressive Farmer noted in an analysis.

EPA said, “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.”

“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,” EPA said.

“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 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.”

“The Army recognizes the importance of our nation’s water resources and the role water plays in our communities across the nation,” said Acting Assistant Secretary of the Army for Civil Works Jaime Pinkham.

“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.”

National Corn Growers Associaton 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.”

The National Cattlemen’s Beef Association criticized the Biden administration’s repeal of the Navigable Waters Protection Rule, which provided regulatory certainty to farmers and ranchers and limited federal overreach.

“The NWPR was a solution to the disastrous 2015 ‘Waters of the United States’ 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 NCBA 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.”


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.

The 2020 Navigable Waters Protection Rule more appropriately limited federal jurisdiction to substantial bodies of water and was a major improvement to the 2015 WOTUS rule. 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. As a result of the court decision, the EPA is relying on the pre-1986 rules, meaning cattle producers have experienced three different WOTUS definitions under the law in the past six years.

Senior EPA officials, including Assistant Administrator for Water Radhika Fox, have stated that the frequent “ping-pong” rule changes need to stop. Today’s repeal of NWPR unfortunately perpetuates the regulatory uncertainty that cattle producers have experienced for years, and NCBA looks forward to holding the EPA accountable for creating a limited, fair WOTUS definition.


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